by C. Jean Stewart
Twice a year probate judges from around the country gather to address current issues in probate, protective proceedings and mental health as part of the work of the National College of Probate Judges (“NCPJ”). Last week we met at the Grand Hotel Resort in Point Clear, Alabama.
Julia Meister, a prominent attorney from Cincinnati, Ohio, discussed the increasing frequency with which probate courts are handling competency disputes in the last chapter of life as opposed to traditional will contests occurring after death. She mentioned the recent, much-publicized probate court decision involving Sumner Redstone. After viewing the video-taped deposition of Mr. Redstone, the probate judge found the media mogul was sufficiently competent to identify who he wanted to be his health care provider.
Dr. Edward Poa, Associate Professor of Medicine at Baylor College of Medicine and Director of the Menninger Clinic, provided a really superb overview of current neuroscience impacting probate courts. Importantly, he taught us that the medical sciences now use the term “neurocognitive disorder” instead of “dementia.” Judges who regularly hear testimony from medical doctors, particularly psychiatrists, will need to learn this new term. Capacity is applied in a medical setting to assess whether a patient can give informed consent. Competence is a legal determination to which physicians can contribute. Dr. Poa was able to make good connections between diagnosed condition and the ability/inability to take care of self or property. He provided a good reminder that this is at the heart of a competency evaluation. Probate Judges: Do not accept conclusory opinions.
Matthew Triggs, a practitioner from Boca Raton, Florida provided a terrific overview of ethical considerations in probate work and Judge James Mitchell of Kennebec County Probate Court in Augusta, Maine shared humorous and insightful comments about his 37 years on the bench as a probate judge. Professor Nancy McLaughlin, the Robert W. Swenson Professor of Law at the University of Utah College of Law in Salt Lake City gave a timely and comprehensive overview of charitable recipients or intended recipients in probate litigation.
The final program of the conference, which was scheduled to, but did not, feature Alabama Supreme Court Justice Roy Moore (currently suspended from service) centered on the issuance of marriage licenses to same-sex couples in Alabama. While relatively few probate judges are in the marriage license business, the topic – the rule of law — is of interest to us all. The NCPJ fall conference will be in Charleston, South Carolina in November.