Fighting Off an Attack Incapacity Suit
The need to defend against an attack incapacity suit can place an elderly person in the position of having to demonstrate adequate memory and self-care capabilities to assure the court that a guardian and conservator are unnecessary. This can mean responding to hostile questions machined by an expert specially trained to manipulate language, being immersed in a wholly foreign environment with unknown rules, and answering questions designed to undermine confidence.
Although specific empiric data are lacking, it is unrealistic to think anyone could endure this situation without considerable stress. To complicate an already difficult task, the elderly person is physiologically programmed to respond to this stress in ways that, however helpful to our cave-dwelling ancestors confronting large and dangerous animals, are of much less certain benefit in court. In particular, human physiology may respond to the stress of trial in a fashion that may impair memory and create the impression in the mind of the fact-finder that the claim of incapacity is true—the selffulfilling prophecy.
For practitioners, being aware of the potential physiological effect of litigation stress on the elderly subject of an attack incapacity suit can inform the representation—the timing of hearings, the scope and nature of discovery, and whether to explore alternatives to trial.
As the baby boomers age, holding a large accumulation of wealth and practitioners see an increase in attack incapacity suits, broader policy questions should be asked and resolved. Why hasn’t there been a specific scientific study on the effect of litigation on capacity? Should our society do one? Are we afraid of what we might learn? And in the area of guardianship and conservatorship, is the current civil litigation model the right model, or should there be an alternative that allows the court to carry out its duty to protect the incapacitated in a way that does not aggravate incapacity and allow for abuses?
To those questions, unfortunately, we lack easy answers. For now, practitioners will continue to plan to avoid guardianship litigation and, we hope, consider the strain of the litigation itself when advising their clients on how to respond when it does arise.