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07/19/83 ALLEGED INCOMPETENCY EDNA E. RICHARD. GUY

July 19, 1983

IN RE: ALLEGED INCOMPETENCY OF EDNA E. RICHARD. GUY DUNCAN RICHARD, PETITIONER-RESPONDENT,
v.
EDNA E. RICHARD, RESPONDENT-APPELLANT.



From the Circuit Court of Adair County; Civil Appeal; Judge Joyce M. Otten.

Before Lowenstein, P.j., Wasserstrom, Manford, JJ.

The opinion of the court was delivered by: Wasserstrom

The principal question presented is whether the evidence supports the finding of the Probate Court that appellant Edna E. Richard ("Edna") is incompetent. We answer that question in the affirmative. We further hold that the admission of certain evidence of which complaint is made was nonprejudicial.

Edna at the time of the hearing before the Probate Court was 74 years of age. In February 1982 she entered the Boone County Hospital for open heart surgery, and on February 26, four coronary by-passes were performed. Her husband attempted to testify that following that operation, she suffered a series of strokes; but pursuant to a hearsay objection, that evidence was refused. Whatever the cause, Edna remained at the Boone County Hospital until May 28, 1982, at which time she was transferred to the Manor Care Nursing Home in Kirksville, Missouri. Edna continued to remain in the Nursing Home from the time of her arrival until the date of the hearing in the Probate Court which occurred July 22, 1982.

In June 1982 Edna's husband filed a petition in the Probate Court for the appointment of a guardian of Edna's person and estate. The petition showed that Edna possessed personal property of $200,000 and alleged that she had become incapable by reason of mental illness of managing her property or caring for herself. No member of Edna's family appeared in opposition to the petition, but as required by statute the Probate Court appointed Mr. James Cole, an attorney of Adair County, to represent her.

At the hearing held by the Probate Court without a jury, testimony was given by Edna's husband, by another lay witness, and by Dr. James D. Smith. That evidence showed that since her admission to the nursing home, Edna has been for the most part confined to bed and a wheelchair. With assistance, she can take up to three steps. She is unable to feed herself, cannot swallow, and takes nourishment solely through a tube.

Her ability to communicate is severely limited. She can nod and shake her head, she covers her head with a bedsheet to cut off contact, and she takes and squeezes the hand of anyone who approaches her bed. Her doctor was able to make out a single word "hurt" uttered by her, her husband (but no one else) believes he can make out the slurred responses "yes" and "no," but otherwise she makes only incomprehensible gutteral sounds. Even the nods and shakes of the head and the slurred responses to her husband are often wrong or inappropriate responses. She is unable to write other than to draw a few child like circles.

Although her husband has attempted to talk to her about her financial affairs, she evidenced no interest. She pays no attention to the telephone or to television or radio. She waves to people, but in one instance as she was being wheeled down the corridor in her wheelchair, she waved to a laundry bag.

Edna's present condition is in sharp contrast to her personality prior to the operation. In the past she was active in church affairs, managed her own finances, did gardening, frequently visited relatives, was very outgoing and well organized and is described as having been a witty, mentally sharp person.

Dr. James D. Smith, an osteopathic physician, treated Edna for coronary artery disease, upper respiratory infection and diabetes in 1978 and 1979 and has been her treating physician since May 1982. Dr. Smith is also the County Health Officer and in that capacity as well as in his general practice has had occasion to diagnose people who had physical as well as psychiatric problems and has made analysis of their psychiatric condition. He also had some exposure to psychiatry as part of his medical education. However, he had not conducted any psychiatric, psychological, nor neurological examinations of Edna.

Dr. Smith testified that Edna's condition which he observed in May 1982 was the effect of a massive cerebral vascular accident, commonly known as a stroke, and that such a stroke affects the mental faculties. He further testified that Edna's condition was "neurologically related" in the sense that signals from the brain cannot get through to her muscles. On cross-examination, appellant's counsel pressed Dr. Smith to say that Edna's problems were purely physical, but Dr. Smith refused to so state. To the contrary, Dr. Smith continued to say in a variety of ways that he believed Edna did not understand all that was said to her, that she made no response to verbal stimulation, that she had brain damage, and that her mental capacity has greatly deteriorated.

On the basis of that evidence, the Probate Court found that Edna was incompetent and was incapable of managing her property and caring for herself. The court therefore ordered that Edna be declared an incompetent person and that her husband be appointed guardian to have the custody of her person and charge of her estate.

On this appeal from that order, Edna's counsel raises the following points: (1) the trial court erred in permitting the testimony of Dr. Smith that appellant had "apparently suffered from a cerebral vascular accident;" (2) the court erred in permitting interrogation of Dr. Smith as to whether Edna was able to make responsible decisions with regard to her handling her property; (3) the court erred in permitting interrogation of Dr. Smith as to whether a stroke affects the mental faculties; and (4) the court ...


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