How Difficult Is It to Prove That an Older Person Is "Incompetent"?

Every adult is presumed to be "competent" -- which is a legal term that means the individual can make legally binding decisions regarding his or her own business and personal affairs.

For Nashville, Tennessee, resident Mittie Alexander -- "Miss Mittie" -- "legally competent" meant the mental capacity to make a deed of her real estate to her niece Starlene Anderson in April 2008, and retaining a life estate in the property.

A year later, in July 2009, Miss Mittie's daughter Teresa Alexander petitioned a Nashville court to be named conservator of her mother. That petition was granted, and eight days later, on September 19, Ms. Alexander filed a lawsuit against Ms. Anderson, seeking to set aside ("rescind") the deed on the grounds that it was procured by fraud or that Miss Mittie lacked the mental capacity at the time she made the deed -- in short, that Miss Mittie was "incompetent."

For her part, Ms. Anderson contended that Miss Mittie had met privately with her own attorney, who consulted with her and drafted the deed. In short, Miss Mittie was "competent."

As Miss Mittie's conservator, Ms. Alexander was tasked with proving that her mother was "incompetent" when she made the deed. How could she do that?

Because the law presumes that Miss Mittie was "competent," her conservator would have to prove that she lacked the mental capacity to enter into the transaction. To do that successfully places a heavy burden on the litigant: to present expert proof of mental capacity (or lack of it).

So that's what Ms. Alexander did. At the jury trial, in May 2012, she offered the testimony of Dr. David Turner.

A specialist in Family Practice, Dr. Turner was presented as an expert in dementia. Ruling that Dr. Turner was not an expert in that field, Judge Randy Kennedy said:

"The Court has concluded that he does have the requisite expertise to give an opinion regarding [Miss Mittie's] capacity and her competency from and after the date of his initial treatment. Now, if questions are asked of him about her capacity or competency previous to September 27, 2011, which is his date of first treatment, if the events are not so remote as to make them speculation then the Court will entertain those questions. But I also have to listen and see whether there are any objections to that."

After this ruling, what should Ms. Alexander do? More than three years prior to the time Dr. Turner first saw Miss Mittie as a patient, could he give a professional opinion as to her mental capacity -- in April 2008, when the deed was signed?

Dr. Turner then testified about the nature and causes, symptoms and consequences, of dementia and Alzheimer's disease; however, Ms. Alexander did not ask him his opinion of Miss Mittie's capacity on the date she executed the deed.

As Judge Kennedy noted, outside the presence of the jury, Ms. Alexander "didn't ask Dr. Turner a single question about anything prior to the date he saw Miss Mittie" or otherwise develop any proof on what Ms. Alexander later told the Tennessee Court of Appeals is "the most salient issue in her case."

The jury returned a verdict in favor of Ms. Anderson, thereby dismissing the case, which was also dismissed on Ms. Alexander's appeal to the Tennessee Court of Appeals.

In re Estate of Mittie T. Alexander, June 5, 2013.

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