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Plan now, avoid questions later

Bo Bingham
Legal Lowdown

Victoria Abreo developed the following test relating to mental competency:

Question 1: How do you put a giraffe into a refrigerator?

Correct Answer: Open the refrigerator door, put in the giraffe and close the door.
Note: This question tests whether you tend to do simple things in an overly complicated way.

Question 2: How do you put an elephant into a refrigerator?
Wrong Answer: Open the refrigerator door, put in the elephant, and close the refrigerator.
Correct Answer: Open the refrigerator, take out the giraffe, put in the elephant and close the door.
Note: This question tests your ability to think through the repercussions of your actions.

Question 3: The Lion King is hosting an Animal Conference. All the animals attend except one. Which animal does not attend?
Correct Answer: The Elephant. The Elephant is in the refrigerator.
Note: This question tests your memory.

Question 4: There is a river you must cross but it is inhabited by crocodiles. How do you manage it?

Correct Answer: You swim across. All the crocodiles are attending the Animal Conference.
Note: This question tests whether you learn quickly from your mistakes.

Ms. Abreo reported that according to Andersen Consulting, around 90 percent of the professionals they tested got all questions wrong while many preschoolers answered the questions correctly. Apparently, this conclusively disproved the theory that most professionals have the brains of a 4-year-old.

All kidding aside, the National Institute of Mental Health reports that the number of Americans with Alzheimer’s disease has more than doubled since 1980 and that it is the most common cause of dementia among people age 65 and older. In fact, 1 in 10 individuals over 65 and nearly half of those over 85 are affected to some degree. Inherited forms of Alzheimer’s disease can strike individuals as early as their 30s and 40s.

Among other things, this demonstrates that when it comes to signing legal documents, timing can be everything. Once a person exhibits signs of mental deficiency, such as memory loss or lack of understanding, the validity of the document they sign (e.g., a will, trust, power of attorney, etc.) becomes susceptible to challenge. If the person wasn’t legally competent to sign, the document is essentially void.

Too often, it is only after a person starts to show signs of deficiency that he or she takes steps to prepare legally. However, by that time, the person may no longer have capacity or, even if they do, someone who dislikes the action taken or decision made may call its legitimacy into question.

In these situations, unfortunately, legal disputes among surviving family members are not uncommon. These sad affairs frequently delve deeply into the person’s mental abilities, medical records, and testimony from medical experts regarding the person’s competency.

They also often involve careful scrutiny into whether anyone, usually a family member, exerted undue influence causing the person to sign a document without fully appreciating its significance. These legal quarrels are too often disrespectful to the person and embarrassing to the family.

For these reasons, if legal documents are going to be signed, additional steps may be taken to help avoid disputes later on. One of these includes obtaining a certification from a doctor attesting that the person is competent and acting voluntarily. This type of planning in advance helps to prevent or resolve questions later on.

Bo Bingham lives in Mesquite and is an attorney with Bingham Snow & Caldwell. He is licensed to practice in Nevada, Arizona and Utah. He can be reached at 702-346-7300,, or at 840 Pinnacle Ct., Ste. 202 in Mesquite.