However, this is not the case. It is necessary to continue to examine the sequence of events that led to the signing of the agreement, whether the deceased signed it without discretion, because he was under unfair influence and that it was not done of his own free will.
C-1 The deceased's competence at the time of signing the agreement
- The task of tracing a person's cognitive state at a certain point in time in the past is complex, and by its very nature it is fed mainly by the interpretation of existing medical evidence and documents. Such an examination requires knowledge, experience, and professionalism in the field of medicine - in order to analyze the content of the medical documents and in order to determine what significance should be attributed to them (Civil Appeal 8023/16 Arbiv Or v. Pantofat Janah, [published in Nevo], paragraph 11 (August 20, 2019)).
- In our case, the deceased has a long history of mental and physical probleMs. Until 1987, he was hospitalized several times in psychiatric hospitals, including for a few months, was treated with medication and was monitored by psychiatric clinics. His basic diagnosis in medical frameworks and tests at the National Insurance Institute was schizophrenia. No psychiatric documents for the years 1987 to 2014 were presented. For a short period of time, although late in life, the deceased suffered from severe physical problems and received treatments.
- According to the plaintiffs, the deceased was not competent to sign such a substantial legal agreement, due to a complex mental background, serious illnesses from which he suffered, and dependence on others. The plaintiffs described the deceased as a sick, mentally damaged person who suffered from heart and kidney diseases, diabetes and chronic depression and needed close help and assistance.
- In these circumstances, in view of the complexity of the deceased's medical condition, I have appointed an expert to examine his competence in depth when drafting a gift agreement.
- In his opinion, at the time of signing the waiting agreement, the expert denies the existence of active psychotic signs due to his being a schizophrenic patient, or the existence of a neuro-cognitive disorder, or a state of confusion due to medication taken by the deceased due to his physical problems: "That there is no evidence in the medical documents as of and close to May 30, 2013, of acute cognitive, mental, physical probleMs. The deceased used to visit hospitals and the medical system with any change in his health condition, and it is reasonable to assume that if there had been a negative change in his physical condition at or near the time on the agenda, he would have come in one way or another to be examined in the emergency room or in another medical framework. It is possible to rule out an acute state of confusion, delirium, as of that date. In addition, a description of cognitive decline, with or without volatility, suitable for the definition of a neuro-cognitive disorder such as dementia, was described by the deceased, cross-checking the psychiatric and physical documents only from the end of 2016 and the beginning of 2017, i.e., a few years after the waiting agreement on the agenda. It is therefore possible to rule out a significant neurocognitive disorder at the relevant time." (emphasis in original).
- The expert states that in relation to the period of time close to the drafting of the gift agreement, the deceased was not under psychiatric supervision or treatment "for the period from 1987 to 2014 ... No psychiatric documents were presented to me, and document 11 from 2014 states "last hospitalization 25 years ago and has not been treated since." It therefore follows that at the time of the legal action on May 30, 2013, the deceased was not under follow-up or psychiatric treatment, and the nearest chronologically close psychiatric examination in August 2014 (Document 11) is carried out about a year and three months after the legal action on the agenda was performed." (emphasis in original).
"... A review of the descriptions throughout 2013 shows once again that there is no diagnosis/description/mention of a mental or cognitive disorder in the deceased throughout 2013 and the medical material relates only to diagnoses, problems or physical treatments. This is also true when focusing even more on the deceased's condition in May and June 2013, which do not describe a mental or cognitive problem, both chronic and acute. In addition, there was no evidence of an acute physical problem in May and June 2013."
- According to the plaintiffs, at the time the gift agreement was drafted, the deceased was in a really bad condition and needed surgery to remove a right kidney, and as a result, he was legally incompetent and it is not clear how he could have taken part in the preparation of the documents.
- The expert notes in this regard that: "The deceased was admitted on May 20, 2013 to the urology department of the hospital... For preoperative evaluation (partial resection of the right kidney due to tumor). On the same day, May 20, 2013, the deceased signed uniform consent forms for surgery, anesthesia, transfusion of blood and blood products. It follows that the person who signed did not believe that there was a violation of the deceased's ability to sign these forMs. A similar situation in the same hospital, in the same department, is described on June 10, 2013, when the deceased came to the surgery himself, which was ultimately canceled due to the anesthesiologist regarding the high risk of serious complications surrounding the operation. On that day, as is often the case, the physical record about him writes about the deceased, among other things, that "independent functioning... Normal mental state."
- The expert summarizes the deceased's condition based on medical documents prepared for the deceased over the years: "In addition to periods of deterioration in his mental state, mainly complaints of depression, anxiety, mainly reactive to family and social problems, there were periods of social remission (a benefit of the condition with a certain ability to stay and function in the community and not in a hospital setting) in which he did not require psychiatric treatment, antipsychotic, medication and "managed" even without clinical psychiatric monitoring.
He worked part of the time, was described as self-employed in both basic and instrumental functioning, supervised and cared for his disabled daughter, and regularly took care of his social rights. In addition, on dozens of occasions of emergency room or hospitalization, non-psychiatrists were not perceived as suffering from a mental problem, consent forms of legal significance were signed without reservation by a medical entity, and also in several psychiatric examinations after the legal action on the agenda in May 2013, one in 2014 and two more in 2017, even though the psychiatrists who examined the test found residual signs of schizophrenia, they rule out any positive psychotic signs (such as delusions or hallucinations) and find that the deceased's judgment is preserved."
- The expert concludes that the deceased was competent to discern the nature of the gift document: "The deceased was diagnosed at a relatively young age with schizophrenia, which is a chronic disease, and over the years and age significant physical problems were added to him. Based on the medical documents that I reviewed, I find that on May 30, 2013, the deceased did not suffer from an acute cognitive disorder due to his physical problems and the medications he was taking (he was not in an acute state of diarrhea), nor did he suffer from an ongoing neurocognitive disorder (such as dementia) or any psychotic state (delusions and hallucinations) as part of his schizophrenia. At that time, in my opinion, there was what was previously called a post-psychotic personality disorder, and several residual signs of his illness which, after I read the gift agreement and with a reasonable degree of certainty, did not impair the deceased's ability to discern the nature of the gift document at hand."
- The appointed expert, after analyzing the medical documents, came to the conclusion that the deceased was competent to take legal action at the time of signing the gift agreement.
The plaintiffs did not ask to interrogate the expert and did not even ask him questions for clarification.