Mental State - Difference Between Medical and Legal

I have recently had a case in which the hospital psychiatrist opined that a client was "incompetent" and, therefore, should not sign his will, power of attorney and living will.

My office staff and I discussed with the psychiatrist and his assistants the fact that "competence" has a different meaning for legal and medical purposes.

The doctor felt that the individual was not competent according to his normal medical standards. We explained to the psychiatrist and his staff that "competence" has a different meaning for legal purposes.

For example, with respect to a power of attorney, we explained that it is sufficient for the individual to understand that he is allowing the holder of the power of attorney (the agent) the authority to handle his assets. Similarly, with respect to the living will, it is sufficient for the individual to understand that he is granting the authority for another to make the specified decision with respect to extraordinary care. A more onerous standard governs testamentary capacity since an individual must understand the nature of his assets, the objects of his bounty and how the assets are disposed of under his will.

After discussion with the medical staff, they agreed that the legal standard should be employed. In fact, we requested and obtained a patient representative and a nurse to witness the will. The will was successfully executed without any concern for challenge.



Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© July 2010, Post 111