Difficulties in Talking About Incompetence and Incapacity, Part IV

August 28, 2014 § Leave a comment

[This is Part IV of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]

Wills and Powers of Attorney

Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have…

Miss. Code. Ann. § 91-5-1. The Mississippi courts have explained what “sound and disposing mind” means here:

For testamentary capacity to be present, the testator must be of “sound and disposing mind” at the time of the will’s execution. Miss.Code Ann. § 91–5–1 (Rev.2004); In re Estate of Edwards v. Edwards, 520 So.2d 1370, 1372 (Miss.1988); Weems, at § 4:3. The requirement of a sound and disposing mind does not mean the testator’s mind must be as good as it ever was. Weems, at § 4:3. Rather, the relevant test centers on the time the will is executed. At that time, the testator must: “understand and appreciate the nature and effect of his act [of making a will,] the natural objects or persons to receive his bounty and their relation to him, and [be] able to determine what disposition he desires to make of his property.” In re Estate of Mask v. Elrod, 703 So.2d 852, 856 (¶ 17) (Miss. 1997).

Noblin v. Burgess, 54 So. 3d 282, 291 (Miss. Ct. App. 2010).

Rather than focusing on the statutory language—”sound and disposing mind”—the courts focus on the test quoted from Estate of Mask and repeated in many other cases. Did the testator “understand and appreciate the nature and effect of his act?” That is, did the testator know he or she was making a will? Did the testator know the “natural objects or persons to receive this bounty and their relationship to him?” That is, did the testator know who his heirs would naturally be, and was making an intentional decision about disposition? Finally, was the testator “able to determine what disposition he desires to make…” That is, were the terms of the will established by the testator’s decision of what disposition to make.

The courts have moved away from a possible vagueness trap—what is “of sound mind?”— to more particular language that focuses on the testator’s understanding of what it means to make a will.

Another factor in the test is one of timing: The test for whether a person had capacity to make a will looks to capacity at the specific time the will was signed and witnessed. [Fn 5] This has led the Mississippi Supreme Court to reject medical testimony that a long-term patient lacked capacity due to age and illness and that it was “possible but improbable” that the patient had a lucid interval, in favor of testimony from the testator’s lawyer that the patient knew the extent of his property and established the provisions for the will, and where the testator told the witnesses that it was his will and he wanted them to witness it. Hayward v. Hawyard, 299 So.2d 207, 209 (Miss. 1974). Even findings that a testator had been diagnosed with paranoid schizophrenia or where a conservatorship had been granted for mental instability, that testator can still be competent to make a will. Estate of McCorkle v. Beeson, 27 So.2d 1180, 1187-1188 (Miss. Ct. App. 2009). The Mississippi Supreme Court has held:

The general law (recognized by the chancellor) is that an insane person may execute a valid will ‘in a lucid interval.’ Gholson v. Peters, 180 Miss. 256, 176 So. 605 (1937). Although the conservator in this case had legal control of the property and estate of the testator, this did not affect the testamentary capacity of the one whose property was under the conservatorship. The key to testamentary capacity is mental competency at the time the will is made. Scally v. Wardlaw, 123 Miss. 857, 86 So. 625 (1920). Regardless of the existence of the conservatorship, one whose property is under conservatorship may execute a valid will during lucidity, if possessed of the requisite understanding and mental capacity.

Lee v. Lee, 337 So.2d 713, 714-15 (Miss. 1976).

[Fn 5] If there is a codicil to the will, the test of competency looks to the time of the codicil because the codicil republishes the will.

A final question of competency or capacity is the competency to make a power of attorney. Mississippi’s Uniform Durable Power of Attorney Act provides no guidance except that it provides that, where the principal (the maker of a power of attorney) lapses into incapacity, the powers granted continue, “as if the principal were competent and not disabled.” Miss. Code Ann. § 87-3-307. This creates the problem of a holder of a power of attorney who ignores his fiduciary duties and abuses the power with a client who is incapacitated and therefore no longer has the capacity to cancel the grant of the power. [Fn 6]  At that point, the only real solution would be the appointment of a conservator, an appointment that many use a power of attorney to avoid.

The Court of Appeals has attempted to bridge this gap in statutory definition for competency to make a power of attorney by looking to the test for making a will. Dowdy v. Smith, 818 So.2d 1255, 1258-59 (Miss. Ct. App. 2002). While not justified by statute, this is understandable because it involves adoption of the clearest of the tests discussed in this article, and because it looks to the capacity of a maker of an instrument at the moment the instrument is made:

We find that a fair analogy is the standard for determining whether a testator has the capacity to execute a will. Both a general power of attorney and a last will and testament require an appreciation of the nature and extent of a grantor’s estate and the effects of a potential distribution.

At least until the Supreme Court opines otherwise, this is the best indication we have of the capacity the maker of a power of attorney must hold.

[Fn 6] The prospect of a holder of a power of attorney whose principal was incapacitated is one of many possible abuses. The author is aware of deeds in the land records of Lafayette County made by a holder of a power of attorney after the death of the principal, in violation of Miss. Code Ann. § 87-3-111 (cancelling powers of attorney on death). The deeds were also, on their face, self-dealing.


Clear or definitive answers are not available even when focusing just on the legal profession in an attempt to pin down or establish a clear meaning for the terms “incompetence” or “incapacity.” The courts and legislature have not agreed on precise or consistent meanings. There is statutory overlap in areas that seem distinct—a guardian looks over the person of the ward, while a conservator looks over the estate unless the court decides otherwise. These tensions are exacerbated when an attempt is made to look beyond the courts and law and ask what meaning these terms may have to other professions.

[Thanks to Mr. Freeland for allowing me to share this informative paper with blog readers.]

Difficulties in Talking About Incompetence and Incapacity, Part III

August 27, 2014 § Leave a comment

[This is Part III of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]


The standard for appointing a conservator is stated in Miss. Code. Ann. § 93-13-251:

If a person is incapable of managing his own estate by reason of advanced age, physical incapacity or mental weakness… the chancery court of the county wherein the person resides… upon the petition of the person or of one or more of his friends or relatives, may appoint a conservator to have charge and management of the property of the person and, if the court deems it advisable, also to have charge and custody of the person subject to the direction of the appointing court.

Several provisions are notable here: First, the test is “incapable of managing his own estate,” and, if that test is met, the chancellor can appoint a conservator who shall have charge of “the property of the person” and, if the chancellor deems advisable, have “charge and custody of the person,” subject to court direction. The subject of a conservatorship has the same limitation on their ability to make a contract as a minor. Miss. Code. Ann. § 93-13-261.

The statute for conservatorships was adopted because of a need for protective services for adults who were not incapacitated as defined in the guardianship statutes. The leading case on the conservatorship statutes, Harvey v. Meador, 459 So.2d 288, 291-292 (Miss. 1984), described this history:

In recent decades there has been an increased number of older adults in our society who possess assets in need of protective services provided through guardianships. But modification of laws have broadened the definition of persons for whom assistance can be afforded by the courts, and such statutes do not restrict such protection only to the adult incompetent or insane.

Noting that trend in our society, the Mississippi Legislature incorporated into law in 1962 the conservatorship procedure for persons who, by reason of advanced age, physical incapacity, or mental weakness, were incapable of managing their own estates. Miss.Code Ann. § 93-13-251, et seq. (1972).

Thus the Legislature provided a new procedure through conservatorship for supervision of estates of older adults with physical incapacity or mental weakness, without the stigma of legally declaring the person non compos mentis. This additional procedure was intended to encompass a broader class of people than just the incompetent.

The Court began with a comparison of conditions that would or would not support the appointment of a conservator:

[M]ere advanced age alone is insufficient. Advanced age will naturally bring about decrease in physical prowess and mental efficiency. However, advanced age which renders an inability to manage property or which advanced age exhibits a serious degree of deterioration is contemplated by the statute.

The fact that physical incapacity exists is not in and of itself sufficient justification for the court taking jurisdiction of property involuntarily. A blind or deaf person may be capable of understanding matters of business and receiving communication on the subject. However, almost complete physical paralysis resulting from a cerebral hemorrhage rendering one incapable of managing the estate would qualify under the statute as physical incapacity. Loss v. Loss, 25 Ill.2d 515, 185 N.E.2d 228 (1962).

Mental weakness, as opposed to the more strict application of mental incompetency, is another statutory standard which also employs some vagueness. Mere lack of good business judgment, not amounting to some degree of wasted or dissipated property, is not a sufficient standard. Mental weakness which renders the subject incapable of understanding and acting within discretion in the ordinary affairs of life is sufficient. See Annot., 9 A.L.R.3d 796 (1966) (and cases cited therein).

Harvey, 459 So.2d at 292. From these considerations, the Court went on to adopt what it called “a management competency test as the standard to be applied under the conservatorship statute.” Id. The Court set forth factors to be examined in following the management competency test.

A test of management competency can be answered by considering the factors of: ability to manage, or improvident disposition, or dissipation of property, or susceptibility to influence or deception by others, or other similar factors.

Id. The Court of Appeals has suggested that any one of these factors is sufficient to allow appointment of a conservator. In re Conservator for Demoville, 856 So.2d 607, 609-610 (Miss. Ct. App. 2003). The Court of Appeals case In re Conservatorship of Hester, 989 So.2d 986, 989-90 (Miss. Ct. App. 2008) provides facts with a good example of the sort of proof that establishes the need for a conservatorship:

[A]t the time of trial, Emma was a seventy-six-year-old woman of below average intellect who had never concerned herself with thehandling of her own business affairs. Instead, she deferred to others to handle these matters in her stead, i.e., her husband, Elden, until his death, then [her live-in son,] Glen. Emma’s own testimony vividly illustrates her inability and/or refusal to deal with the management of her estate. She possesses little meaningful knowledge regarding the amount or whereabouts of her finances, and she has exhibited overall indifference to her business affairs and her living conditions alike. Emma has clearly misplaced her reliance on Glen who has dissipated her funds at will, using them as his own. Emma’s indifference to and/or ratification of Glen’s overreaching demonstrates the level of ease with which Emma may be taken advantage of. Although there was evidence that Emma was capable of performing basic tasks of self-preservation, the evidence supports the conclusion that Emma was incapable of managing her own affairs by reason of advanced age and mental weakness. The record also makes clear that one more responsible than Glen was needed to exercise care and custody over Emma’s estate and person.

Difficulties in Talking About Incompetence and Incapacity, Part II

August 26, 2014 § Leave a comment

[This is Part II of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]

New Statute Relating to Guardianships and Conservatorships

In the most recent term, the legislature passed Senate Bill 2240, [Fn 1] which made substantial additions and some changes to the statutes governing conservatorships and guardianships. Most of the new provisions related to multi-state issues and jurisdiction. There is a provision defining conservator:

[Fn 1] The full statute may be found at: http://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2200-2299/SB2240SG.pdf

“Conservator” means a person appointed by the court to administer the property of an adult, including a person appointed under Section 93-13-251 et seq.

The cited code sections are those for conservatorships; it is not clear why the word “including” is used. There is a provision defining guardian:

“Guardian” means a person appointed by the court to make decisions regarding the person of an adult, including a person appointed under Section 931-13-111 and Sections 931-13-121 through 93-13-135.

The cited sections are the guardianship statutes.

These provisions have been described as clarifying the distinction between a conservatorship and guardianship. [Fn 2] In one aspect, it is confusing. Under prior law, the conservatorship statute provided for a conservator “to have charge and management of the property” of the subject, or, if the court saw fit, the person of the adult. Miss. Code. Ann. § 93-13-251. This provision is explicitly carried forward by Senate Bill 2240. It is not entirely clear how these different definitions (“managing” property and “having charge and custody of the person” versus “mak[ing] decisions regarding the person of an adult…”) will work in practice, if they are different at all. Further evidence that they may not be different is found in another statutory provision, Miss. Code Ann. § 93-13-261, which defines the powers of a conservator as the same as those of the guardian of a minor.

[Fn 2] Judge Primeaux on his blog, which is one of the best legal resources on the internet for Mississippi lawyers, particularly those in chancery court, described the definitions as clarifying. https://chancery12.wordpress.com/2014/07/10/new-procedures-in-adult-guardianships-and-conservatorships/

The statute also defines an “Incapacitated person” as “an adult for whom a guardian has been appointed….” This highlights a distinction between conservatorships and guardianships that will be discussed, below, in the section on conservatorships: An adult under a guardianship is said to be “incapacitated,” while the subject of a conservatorship is “incompetent.”


Incapacity requiring a guardianship for an adult comes the closest to having a statutory definition. In a chapter titled, “Persons in Need of Mental Treatment,” Miss. Code Ann. §93-13-111 provides:

The chancellor may appoint guardians of the person and estate, or either, of persons found to be in need of mental treatment as defined in Section 41-21-61 et seq. and incapable of taking care of his person and property, upon the motion of the chancellor or clerk of the chancery court, or upon the application of relatives or friends of such persons or upon the application of any other interested party.

This seems to require both a showing of “need of mental treatment” and that the person is “incapable of taking care of his person and property.” The statute then restates the requirement but seems to say that either showing would suffice:

If the chancellor should find from the evidence that such person is in need of mental treatment and incapable of taking care of his estate and person, or either, the chancellor shall appoint a guardian of such person’s estate and person, or either, as the case may be.

The language stating it can be “either” here in the statement of the required proof and, later, in  the description of the contents of a petition suggests that either would suffice. The statutory provision referred to by the guardianship statute does not define persons in need of mental treatment. Instead it defines a “Mentally ill person” and a “Mentally retarded person.” Miss. Code. Ann. § 41-21-61 (e) and (f). It is important to note that chapter 41-21 is the part of the code that provides for a commitment proceeding; essentially for a chancellor to find a person is in need of mental treatment, the chancellor must find that the person is subject to being committed. [Fn 3] The statutory definition may be as important for what it excludes at the end as it is for what it includes at the beginning. It provides:

(e) “Person with mental illness” means any person who has a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which (i) is manifested by instances of grossly disturbed behavior or faulty perceptions; and (ii) poses a substantial likelihood of physical harm to himself or others as demonstrated by (A) a recent attempt or threat to physically harm himself or others, or (B) a failure to provide necessary food, clothing, shelter or medical care for himself, as a result of the impairment. “Person with mental illness” includes a person who, based on treatment history and other applicable psychiatric indicia, is in need of treatment in order to prevent further disability or deterioration which would predictably result in dangerousness to himself or others when his current mental illness limits or negates his ability to make an informed decision to seek or comply with recommended treatment. “Person with mental illness” does not include a person having only one or more of the following conditions: (1) epilepsy, (2) an intellectual disability, (3) brief periods of intoxication caused by alcohol or drugs, (4) dependence upon or addiction to any alcohol or drugs, or (5) senile dementia.

[Fn 3] Beyond the definition of a mentally ill person, the procedures in the guardianship statutes are different than the procedures in the commitment proceeding statutes. Commitment proceeding statutes provide that a relative “may make affidavit” that includes facts relating to why the commitment is needed. Miss. Code. Ann. § 41-21-65. They provide that, after the hearing, the chancellor “shall forthwith appoint” either two physicians or a physician and a psychologist to conduct a physical and mental examination of the person. Miss. Code. Ann. § 41-21-67. There are no parallel provisions in the guardianship statute.

If by “person in need of mental treatment,” Miss. Code Ann. §93-13-111 means “person with mental illness,” then persons with an intellectual disability or senile dementia could not be placed in guardianships under that part of the test. They are specifically excluded. [Fn 4] The statute goes on with another definition:

(f) “Person with an intellectual disability” means any person (i) who has been diagnosed as having substantial limitations in present functioning, manifested before age eighteen (18), characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two (2) or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, and (ii) whose recent conduct is a result of having an intellectual disability and poses a substantial likelihood of physical harm to himself or others in that there has been (A) a recent attempt or threat to physically harm himself or others, or (B) a failure and inability to provide necessary food, clothing, shelter, safety, or medical care for himself.

[Fn 4] That infirmities of aging do not support appointment of a guardian is confirmed by Miss. Code. Ann. § 93-13-121, which covers appointment of a guardianship for an adult who had been appointed an out-of-state guardian. It requires that the court find that the ward is now a resident of this state and is incompetent to manage his estate, but that “infirmities of old age shall not be considered elements of infirmities.”

Miss. Code Ann. § 41-21-61 (f). The language about the incompetencies required to appoint a guardian in this paragraph—”failure to provide necessary food, clothing, shelter, safety, or medical care for himself”—would seem almost identical to the second requirement of Miss. Code. Ann. § 93-13-11— “incapable of taking care of his estate and person.”

The code provides that a guardianship proceeding can be begun by the chancellor’s own motion, a motion from the chancery clerk, or a motion by “relatives or friends of such persons” or “the application of any other interested party.” Miss. Code. Ann. § 93-13-111. The petition is required to be sworn. It must be: “a sworn petition in the chancery court of the county of the residence of such person, setting forth that such person is in need of mental treatment and incapable of taking care of his person and estate, or either.” A guardianship proceeding begins quickly—once a petition is filed, a hearing can be had on five days notice to the potential ward. Id.

Difficulties in Talking About Incompetence and Incapacity, Part I

August 25, 2014 § Leave a comment

[This is Part I of a paper by Attorney Tom Freeland, IV, of Oxford, presented at a seminar sponsored by the North Mississippi Rural Legal Services Elder Law Project, Jennie Kilgore, Director]


“In defining what must be shown to establish incompetence, ‘courts… have recognized that a firm definition of the grounds named within a statute is difficult to enunciate. Rather, the courts generally have prescribed the degree of acumen necessary to manage property, but left that determination to a factual analysis of the particular case…. ”  Harvey v. Meador, 459 So.2d 288, 292 (Miss. 1984).


The terms “incompetence” and “incapacity” must be understood in representing elderly clients, but yet their meaning seems just out of reach, or, as the Court stated in Harvey, “difficult to enunciate.”

The terms do not mean the same thing, as a legal matter, in different contexts. It is clear, for instance, that a person can be incompetent, justifying the appointment of a conservator, but yet be perfectly competent to make a will. See Lee v. Lee, 357 So.2d 713 (Miss. 1976) (so holding). But yet a person subject to a conservatorship, who can make a will during lucid intervals, cannot make a deed without court approval, whether lucid or not. In re Estate of Thomas, 853 So. 2d 134, 135 (Miss. Ct. App. 2003); see Miss. Code Ann. § 93-13-261 (statutory limitation on conveyance powers of person subject of a conservatorship).

These problems with definitions are exacerbated by the fact that legal professionals must also work with health care and social work professionals in providing services for these clients. It is a commonplace that doctors and lawyers have problems communicating about incapacity in the form of mental illness. The medical profession does not use the statutory terminology lawyers are required to use and often does not think in comparable terms. This paper will attempt to pin down, to the extent possible, the language lawyers are required to use in considering questions of competency and capacity, in hopes of making possible a discussion of how best to approach these issues when they arise with elderly clients.

These issues arise in a number of contexts in representing elderly clients, beginning with the routine memory issues due to aging through the effects of Alzheimer’s disease or dementia on memory and function, and include developmental disabilities that an older client has dealt with since childhood.

Competence / Incompetence and Incapacity

Black’s Law Dictionary’s negative definition is clearest

Incompetency. Lack of ability, legal qualification, or fitness to discharge the required duty. A relative term which may be employed as meaning disqualification, inability or incapacity and it can refer to lack of legal qualifications or fitness to discharge the required duty and to show want of physical or intellectual or moral fitness.

The key word in this definition is the word “relative.” Incompetency is best thought of relevant to the particular kind of incompetence: As noted, a person can be incompetent to manage their own business affairs but perfectly competent to make a will. Incompetence is used in the law in a lot of contexts, some having nothing to do with the kind of competence discussed here (for instance, the question of whether a witness is competent).

One particular way that the kind of incompetence is critical is that the test varies from very stringent (that is, requiring much more serious proof) to less depending on the legal context. The criminal context involves probably the most difficult burden to show incompetence in the area of competence to stand trial or the level of incompetence required for the insanity defense. This paper is limited to the civil context and will focus on four different versions of incompetence: incapacity at the level of non compos mentis (Latin meaning, literally, “not of sound mind”) involved in appointment of a guardian, “management competency” involved in appointment of a conservator, competence to make a will, and competence to make a power of attorney.

Another way the question of competence is “relative” is the different ways the word is used by different professionals and by the lay public.

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