Civil Competencies

Question 1

components of incompetence

Answer 1

• The person has a MENTAL disease.
• The disease causes a DEFECT in judgement.
• The defect in judgement causes a SPECIFIC INCAPACITY.

Question 2

burden of proof in civil incompetence

Answer 2

Adults are presumed competent until proven otherwise, so burden of proof is on person proving incompetence.

Question 3

components of testamentary capacity

Answer 3

The testator must generally understand:
- That he is writing a will.
- The extent of his bounty (property).
- Those who have natural claims upon his bounty.

Question 4

undue influence on wills

Answer 4

Pressure applied unfairly to benefit another. Requires an element of coercion, compulsion, or restraint such that the will does not represent the wishes of the testator.
May negate a will even though the testator had testamentary capacity.

Question 5

types of guardians

Answer 5

guardian of person (plenary)
guardian of the estate (conservator)

Question 6

case re: competence to make medical decisions: capacity to consent to voluntary psychiatric hospitalization

Answer 6

Zinermon v Burch, USSC 1990. “The very nature of mental illness makes it foreseeable that a person needing MH care will be unable to understand…”
Court suggests in dicta that there should be procedures to screen competence for voluntary admission.

Question 7

cases re: competence to make medical decisions: capacity to give informed consent

Answer 7

Evolving standards.
Physician-centered: Reasonable medical practitioner standard (Natanson v Kline, 1960)
Patient-centered: Materiality of the information standard (Canterbury v Spence, 1972)

Question 8

case re: competence to consent to research

Answer 8

Kaimowitz v Michigan DMH, 1973.
Inherently coercive institutional environment prevents voluntary consent. Led to heavy restrictions on prison research.

Question 9

cases re: models of alternative decision-making

Answer 9

Hargrave v Vermont, 2003: Vermont Act discriminated against mentally disabled in violation of ADA and Rehab Act of 1983. Statute precluded only mentally disabled who become incompetent from enacting DPOA.
Superintendent of Belchertown v Saikowicz, 1977: Profoundly ID man devel leukemia. Guardian recommended no tx 2/2 morbidity and terminal nature of disease. Holding: potentially life-prolonging tx requires substituted judgment. Decision must be what INDIVIDUAL would have wanted if competent.
Cruzan v director, Missouri DMH, 1990: Cruzan’s premorbid verbalization of her wishes was insufficient evidence to meet Clear and Convincing standard required by the State of MO to refuse life-sustaining nutrition and hydration; and clear & convincing standard was not unconstitutional.

Question 10

2 things that can invalidate a will, even if the testator has testamentary capacity

Answer 10

“Insane delusions” or “undue influence”

Question 11

Natanson v Kline

Answer 11

Supreme Court of Kansas 1960
Irma Natanson suffered burns after radiation tx for breast cancer.
Established REASONABLE MEDICAL PRACTITIONER standard.

Question 12

Canterbury v Spence

Answer 12

DC Circuit Ct of Appeals 1972
Canterbury had laminectomy, paralized and incompetent.
Established MATERIALITY OF THE INFORMATION / REASONABLE PERSON standard.

Question 13

Truman v Thomas

Answer 13

California Supreme Court 1980
Truman refused pap smears, died of cancer, kids sued.
Informed consent requires discussion of RISKS OF REFUSING TX.

Question 14

Therapeutic misconception

Answer 14

The tendency for research subjects to believe the research is for therapeutic purposes (ie, for the gain of the subject) rather than designed to answer a larger study question.

Question 15

Kaimowitz v Michigan DMH

Answer 15

Michigan Circuit Court, Wayne County, 1973.
“A person involuntarily detained cannot give consent to an innovative or experimental surgical procedure on the brain where the danger is high and the risks incapable of assessment.”
Involuntary pts live in inherently coercive environments.
This case led to nationwide modifications in criminal sexual psychopath detention w/o trial and curbed intrusive and risky institutional experimentation.

Question 16

Hargrave v Vermont

Answer 16

2nd Circuit Court of Appeals
Nancy Hargrave had DPOA saying no psychotropics. VT had statute that allowed pts to be medicated against their will after a waiting period of 45 days.
Court found VT statute to be violation of ADA.

Question 17

Superintendent of Belchertown v Saikowitz

Answer 17

Mass. Supreme Court 1977
Joseph Saikowitz, severe ID, leukemia.
Judge should apply SUBSTITUTED JUDGMENT DOCTRINE, defining sub judg as THE DECISION THAT THE INCOMPETENT PERSON WOULD HAVE MADE IF HE OR SHE WERE COMPETENT.

Question 18

Cruzan v Director, Missouri DMH

Answer 18

USSC 1990
Nancy Cruzan in persistent vegetative state s/p MVA. Parents wanted to terminate life sustaining nutrition.
USSC held that Missouri’s requirement that evidence of incompetent person’s wishes meet standard of Clear and Convincing evidence was NOT unconstitutional.

Question 19

APA Task Force on Consent to Voluntary Hospitalization (1993) recommendation re: minimal standard for capacity to consent to voluntary hospitalization

Answer 19

1. Understand that he or she is entering a hospital.
2. Understand he or she may not be able to leave if there were concerns about his or her risk of harm to self or others.

Question 20

Final Report of the National College of Probate Judges Advisory Committee on Interstate Guardianships (1998)

Answer 20

Recommended facilitating the “portability” of interstate guardianships to facilitate moving guardianships across state lines to protect and further the best interests of the ward.

Question 21

Competence to vote

Answer 21

Decided by the states.
One standard accepted in federal court is defined by a person’s capacity to understand the nature and effect of voting and the capacity to choose among the candidates and issues.

Question 22

Incompetence to enter into a contract

Answer 22

It must be shown that a mental disability (incl cognitive disabilities) rendered the individual unable to appreciate the nature of the transaction or its ramifications.
Simple ignorance or lack of sophistication is NOT sufficient.