Mental Status Exams
Justin A. Meyer
Competence is an often-tested and often-examined issue. From contracts to wills, it is important that as attorneys, we are able to determine whether our clients are mentally able to understand what they are signing and what is going on. When you have long-time clients, and are familiar with them enough, then it is not necessary to specifically evaluate their mental states. What do you do, however, when you are dealing with a new client, or a client whose mental status may be challenged in the future?
It is important to understand Mental Status Exams (MSEs) and their use. It is also important that attorneys recognize the different levels of competency that different situations call for.This article will start by discussing competence as determined by caselaw, and then how to determine whether your client is truly competent, using an MSE. While competence in contract will be discussed, I will focus primarily on estate planning and elder law, as those are two areas in which competence is most often tested.
In contract matters, competence is presumed. In order to overcome that presumption, the challenging party must prove that the alleged incompetent person suffered not only from a mental illness, but that the mental illness or defect prevented him from understanding what he was doing. Horrell v Horrell, 73 AD 3d 979, 980 (NY 2d App. Div., 2010) (citations omitted). In order to determine competence to sign a Last Will and Testament, there are three things that must be established. First, does the testator understand the consequences of executing a will. Second, does the testator understand the property that she possesses and is giving away. Finally, does the testator know "those who would be considered the natural objects of her bounty." Matter of Kumstar, 66 N.Y.2d 691, 692 (1987). Courts have also considered whether the testator is "oriented to time and place. Matter of Collins, 124 A.D.2d 48, 53 (4th App. Div., 1987).
Article 81 proceedings (guardianship proceedings so named because they are governed by article 81 of the Mental Hygiene Law) have a similar standard of competence. These proceedings, which require the petitioner to prove that the Alleged Incapacitated Person (usually referred to as the "AIP") is a) unable to care for his personal needs or property, and b) unable to "understand ... the nature and consequences of such inability." MHL 81.02(b). Unlike other types of matters, competence in Article 81 hearings will be determined by the judge based in part upon a hearing at which the AIP will speak with the judge, although a Court Evaluator will first meet with the AIP.
Most issues of competence will come down to whether the person in question was "oriented to time, place, and person." This term is used both in legal and medical contexts and means the same basic thing. Is the person alert? Is she aware of who she is and where she is? Does she understand the significance of why she is there? In a recent Article 81 proceeding where I represented the AIP, the judge asked my client, not under oath, to identify herself and me, including what my role was, and if she could state why we were in court.
A full MSE administered by a doctor involves assessing a patient's mood, orientation, thought process, memory, and intellectual functioning. See The Mental Status Exam, http://psychclerk.bsd.uchicago.edu/mse.pdf (Last accessed Feb. 22, 2014). For the purposes of evaluating a client, it is not necessary to do a full MSE. In fact, very few attorneys would be qualified to do so. Instead, it is enough for most to focus on ensuring that the client is able to answer several basic questions. While the questions themselves may vary, they all ensure that the client is aware of where they are, why they are there, and what the consequences of their actions are.
Doing so is relatively easy. If you are in doubt about a client's mental ability, start with three basic questions:
● What is your name?
● Where are you, and why?
● What year is it?
Some people will encourage asking for the full date, day of week, and even asking for the season. It has been my experience, however, that knowing the full date is not indicative of orientation to time. Many people who are otherwise perfectly fine cannot tell you the date without first checking a calendar or, more likely, their cell phones or computer clocks. Month, season, or day of the week might be appropriate to ask, however. The reality is that there is no right way to phrase the question - the end result that you are looking for is some sense of awareness of the present. Another popular question that establishes orientation to time is "who is the president?"
After asking those questions, you may want to ask a couple of others, to establish further mental acuity. Some possible questions revolve around past meetings - asking if the client remembers something that you did or talked about at your last meeting, or some other event is a good test question. Asking about the client's family history (when and where did you get married, when and where were your children born) is also very effective. If client will be executing documents other than a will, ask the client to explain the documents to you, and what the result of executing the documents would be. If you are executing a will, then you should also ask about the assets of the client, and the who the client's closest living relatives are. If those relatives are not immediate family (wife, children, parents, and siblings) then you may want to consider a family tree to help identify who are the actual closest living relatives.
After the examination, it would be best for the you, as the attorney, to document the results of the MSE. Attorneys can draft affirmations which have the same evidentiary weight as an affidavit, but need not be notarized. This privilege is established under CPLR section 2106. Doctors and dentists are also accorded the same privilege, so long as they are not a party to the action. Writing everything in a signed affirmation immediately after the execution ceremony will enable to you to have documentation of the event, including the questions asked. If you are truly worried that there will be a challenge, setting up a video camera in a corner that can capture everything may be the best strategy.
In order to establish that a client is competent, an MSE is often the best way. While the practical burden is always on the person challenging the document, the best way to protect your client from a challenge is to be prepared. When one is anticipated, three or four simple questions can go far in defusing the threat. That five minutes may be what saves your client a significant sum of money in legal fees later on.
Justin A. Meyer, Esq. is an attorney with Meyer and Associates, Counselors at Law, PLLC on Long Island, New York, admitted in New York, New Jersey, and Florida. He handles estate planning and administration, Article 81 guardianship matters, real estate, and business law. He can be reached at firstname.lastname@example.org. Thank you to Veronica Reed of Mental Health Legal Services for her assistance. Any errors herein are strictly mine.