How Physician Opinion Letters Affect Estate Disputes

In my over 30 years of practice in the area of trust & estate litigation and elder law I have found that there is no area which is so universally misunderstood by judges, attorneys, clients, physicians, and social workers as the term legal capacity, as it relates to an individual’s ability to perform tasks and enter into contracts as recognized by the law. Additionally, even many physicians including psychologists, psychiatrists, neurologists, as well as general primary care physicians, have little knowledge of the use and more specifically the necessary testing and expertise required in forming medical-legal opinions as to their patient’s capacity to perform a specific task or enter into a specific transaction or to execute a testamentary document.

This is despite the fact that physician letters or opinions are often used and provided to third-parties including attorneys, investment advisers, bank representatives and the like. Unfortunately, the majority of these physicians writing these letters have little or no knowledge, skill or training when formulating these opinions which are used for highly specific purposes sometimes involving significant assets and having long-lasting financial and personal consequences to the patient and other third-party individuals who rely on them.

The terms incapacity and competency are often mistakenly used interchangeably, but they have a different meaning. Incapacity is the term employed by a physician or trained psychologist who specializes in neurocognitive behavior when referring to an individual’s cognitive ability to assimilate information to make informed and rational decisions in relation to a particular task or function. Competency, conversely, is a legal term used by the courts and attorneys to refer to an individual’s legal ability that is recognized by the law to perform a specific task or enter into a specific type of contract or instrument.

The great confusion lies among physicians, psychologists, psychiatrists, and even attorneys, social workers, and the courts and the failure to recognize the differing types of capacity required to perform a particular task or function. There are many different degrees of capacity and even within a particular function capacity may be greater or less depending on the nature of the task. For example, differing types of capacity is required and recognized at law to perform a simple will versus a complex trust, or capacity to stand trial in a criminal proceeding, to manage one’s own finances, to marry or divorce, to engage in assisted suicide and end of life decisions, or merely to consent to medical treatment. In some states, the capacity to sign or execute a power of attorney is different than to execute a will or trust in most states. The capacity required to manage one’s finances is recognized as generally greater than to execute a simple will.

Although these concepts by themselves seem simple enough they are not so simple to ascertain and apply in a specific fact situation with a given person. Sometimes age, education, general health all play a role in determining capacity. To make matters more difficult, there is no single test for determining capacity that is employed by a skilled practitioner. Often practitioners, in order to determine capacity, must rely on a multitude of tests and analysis along with patient interviews in order to determine capacity. Even with this, in large and small cases it is clearly known that experts can differ strongly over whether an individual has capacity at any given point in time relative to any particular task or function.

For these reasons, experts often battle in court over a given transaction which may have occurred in determining whether, at that instant, the transaction was executed with the individual having the capacity to enter into it. After the death of an individual, experts such as forensic psychiatrists may be called in to testify after reviewing medical charts, interviewing third parties, and sifting through the nature of the transaction or instrument to ascertain whether an individual had the requisite legal competency at the time. It has only been over the last 20 years or so that physician opinions have been used on an informed and meaningful basis prior to the execution of an instrument or completion of a transaction. The reality is that until recently the fields of forensic psychiatry were simply not at the stage to have meaningful value into determining capacity or competency.

The community standard in the area of neuro-cognitive science and behavior and neuropsychiatry as it pertains to an individual’s capacity is woefully inadequate and extremely low. In some cases, a physician’s opinion can be completely worthless because the physician lacks the knowledge to provide a qualified opinion.

This author recently took a deposition of a primary care doctor since retired, that had written an opinion letter that the person was capable of performing simple tasks. The individual went on to write amendments to their trust which involved several million dollars. The physician at deposition could not definitively state whether they even examined the patient and the physician indicated that the opinion might have been performed as a favor for a physician partner in her office. Furthermore, the physician indicated that they had absolutely no skill or training in the area of competency or capacity and did not even know what testamentary capacity was. The physician did not ask any questions regarding the purpose of the letter and therefore could not ask the patient regarding the future change that was about to occur in the estate plan.

It is incomprehensible, how the estate planner could have relied on that letter to make the required change.

Sadly the physician is often “set up” by one or more individuals to be a witness in a trial in which they have been simply unaware of the nature of the testamentary instrument or the overall purpose of the opinion letter. Because the physician has little or no training in the area that simply does not ask the proper questions as to why, when, and how this transaction will occur, the physician has no way of having the ability of the patient to evaluate information relative to the transaction or instrument.

In trust administration, a trustee should be removed when he or she is unable to serve due to “disability.” Often times, estate planners employ language in which “disability” can be evidenced by the opinion letter of the trustee’s primary care physician. Given the lack of training of a primary care physician, estate planners may desire to re-examine physician certification language regarding a trustee’s disability.

In summary, third parties relying on physician letters, whether it be estate planning attorneys, corporate counsel, or individuals, should use a common-sense approach. A cursory short broad statement of competency, when provided to a third party, is clearly insufficient in the vast majority of cases. Third parties should request, whenever appropriate, that a definitive and comprehensive evaluation specific to the transaction or purpose be undertaken particularly when other red flags are present in the course of dealings with the individual.