Doctors, Competence, and Estate Planning

by Karen L. Brady

No, the title of this blog entry isn’t about doctors who are incompetent. It’s about when you are incompetent to manage your affairs. Trusts, powers of attorney, and living wills are all designed in part to allow you to make your wishes known about what to do when you are no longer competent to express those wishes yourself — or carry them out. Yet, how do we determine when you are no longer competent?

The standard answer is to look to doctors. If a doctor or two says that you are not competent, then your legal rights are cut off and your power of attorney, living trust, or even a court-ordered conservatorship will determine who manages your affairs and how. Yet, a doctor’s training and approach is often contrary to the approach of the law. The law looks for bright lines — competent or incompetent. There is nothing in between. The medical profession looks for diagnoses, but they can be preliminary, dependent on how the patient responds to different treatment. And treatment is the real end goal of most diagnoses. Doctors Elena Nichita and Peter Buckley discuss this in the context of the mentally ill in an article that appears on the website for Psychiatry magazine.

When I was in law school, I worked at the University of Michigan Law School’s clinical program. At the time, every clinical student was expected to defend at least one person who faced involuntary commitment to a mental institution. The commitments lasted at least thirty days, and a judge had to decide whether to commit based on whether the person posed a danger to himself or others.

While waiting in the courtroom to defend my client, the judge heard a case about a man who had first been recommended for commitment by personnel at the local hospital emergency room. The man had gone to the emergency room after injuring his foot. The emergency room doctors suspected a broken toe and wanted to X-ray the foot. The man refused. Since refusal to get appropriate medical treatment is grounds for commitment, the doctors had him committed for 3 days pending a hearing on commitment for a longer term.

At the hearing, the man was difficult, to put it mildly. He swore, shouted, and was generally obstreperous. The whole scene reminded me of Barbara Streisandin the movie “Nuts”. Yet, as obnoxious as he was, there wasn’t any real evidence he was incompetent. Yes, he had refused an X-ray. On the stand, he explained that he didn’t want an X-ray of his foot to confirm he had a broken toe, because he knew you can’t really treat a broken toe anyway. The X-ray was futile. None of the doctors or other witnesses disputed this. Yet, this judge’s reputation was to always listen to the doctors, and that’s what he did. The man was committed to a mental institution for 30 days, where presumably they would force him to X-ray his foot.

So, how do we determine competence if we don’t rely on doctors? Don’t get me wrong, I think doctors have a role in the determination. Besides, M.D. after someone’s name impresses the bank clerks and other personnel who usually have a surprising amount of control over your money. Yet, I contend that the decision shouldn’t rest solely with the doctors. A power of attorney or living trust can require that a determination of competency be made by trusted family members, in conjunction with the doctors. After all, who is more likely to know when your behavior has gone beyond your usual quirks to something else entirely?

And don’t get me started on the problems that HIPAA and privacy rules can create for getting a finding that you lack competence. I’ll save that for another blog entry.