A look at mental capacity and intention


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D.

This month's column focuses on some situations when psychologists could be confronted with legal issues surrounding questions of mental capacity and intention.

"Intent" sounds as if it should have one clear meaning, as in 'what did you mean to do?' However, the context of that intent and the capacity and capabilities of the person having the intent may vary. The law looks at different contexts and establishes a definition to be applied under certain circumstances and then the law may even establish certain defined exceptions or defenses to the situation.

In criminal law, many categories of crimes exist, but for this discussion, we'll mention two: malum prohibitum and malum in se. Malum prohibitum is a law enacted to prevent a particular act and only requires the proof of the doing of the act itself to establish the commission of the crime. A malum prohibitum crime is not based on a moral belief or an immoral act. An example of a malum prohibitum crime is parking by a fire hydrant.

Malum in se crimes (in the plural, Mala in se) is different. There's a belief that these acts are morally wrong. In order to establish the commission of these acts, the government must prove the act itself plus the intent to commit the act. What is that intent?

Intent expresses mental action at its most advanced point or as it actually accompanies an outward, corporal act which has been determined on. Intent shows the presence of will in the act which consummates a crime. It is the exercise of intelligent will, the mind being fully aware of the nature and consequences of the act which is about to be done, and with such knowledge, and with full liberty of action, willing and electing to do it. (Burrill, Circ.Ev. 284, and notes. Black's Law Dictionary.)

Defenses to this intent include youth, insanity and retardation, all issues of incapacity.

'Intent' and 'motive' are not in law one and the same thing. 'Intent' in a legal sense is purpose to use particular means to effect certain result; whereas, 'motive' is reason which leads minds to desire that result. (United Fidelity Life Ins. Co. v. Adair, Tex. Clv. App. Black's Law Dictionary.)

In civil law matters, torts and contracts are involved. These are relationships of individuals or groups (including corporations) with other individuals or groups. A tort is "a private or civil wrong or injury. A wrong independent of contract. A violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction. (Coleman v. California Yearly Meeting of Friends Church).

There must always be a violation of some duty owing to plaintiff and generally such duty must arise by operation of law and not by mere agreement of the parties. (Diver v. Miller, Del. Super)." A willful tort "implies intent or purpose to injure. (Cousins v. Booksbaum; American Casualty Co. v. Brinsky). It involves elements of intent or purpose and malice or ill will, but malice or ill will may be shown by indifference to safety of others, with knowledge of their danger or failure to use ordinary care to avoid injury after acquiring such knowledge. (Hillard v. Western & Southern Life Ins. Co)."

In contract law, Massachusetts has a recent Appeals Court case which stated: "The capacity to contract requires the ability to transact business, and more specifically the ability to 'understand the nature and quality of the transaction' and to 'grasp its significance'." (Maimonides School v. Coles, 2008)

In that same case, the Massachusetts Appeals Court discussed the level of capacity to make a will: "In contrast, the standard for testamentary capacity 'requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.' Palmer v. Palmer, quoting from Goddard v. Dupree, (1948)."

Both of these areas, capacity to make a will and the capacity to contract, are similar in the sense that a person is deciding to do a particular act and memorialize it by signing a document (will or contract) or doing an agreed to act (contract). A will is usually a singular act which needs merely to have the testator (writer of the will) understand the existence of his/her possessions with an intent to the final disposition of those possessions.

A contract is more complicated. The capacity to engage in a contract requires the understanding of the rights of all parties and the factors mentioned above and a concept called a "meeting of the minds." A meeting of the minds is more than merely two parties understanding the same facts and conditions. It includes knowing and believing that the other party knows and believes what you believe and understand.

A look at mental capacity and intention (January 2009 Issue)

By Edward Stern, J.D.

A look at mental capacity
and intention
(January 2009 Issue)