This matter comes before the court by way of an application for a plenary hearing made by Charlotte Frisch, guardian for Leonard Frisch, Jr. On April 4, 1991 an order for a plenary hearing was signed. May 16, 1991 was set as the return date to decide:
(a) whether Leonard Frisch, Jr. has returned to "general competency"; and/or
(b) whether Leonard Frisch, Jr. has sufficient competency to make a will.
The Factual and Procedural History.
Leonard Frisch, Jr., hereinafter Leonard, was severely injured as a result of an accident in July 1979. He instituted litigation that eventuated in a favorable settlement of the personal injury action in his favor. In November 1980, he was declared "physically and mentally incompetent" by Harold Kaplan, J.S.C. Subsequent thereto, there was litigation relating to his marital status which included a final judgment of divorce and incorporated by reference a settlement of other claims in a final judgment set forth in Superior Court, Law Division, Ocean County, Probate Part, docket no. 60418. Christopher Frisch, the son of that union and Susan Frisch, the former spouse, were given notice of this hearing, but did not appear. Leonard is now age 50.
The instant proceedings were initiated by Leonard's guardian and his natural mother, Charlotte Frisch, for a determination that he has returned to competency; or in the alternative, that he is competent to execute a will. All interested parties were notified and no objection was filed nor appearances made by any other party.
The Hearing on May 16, 1991.
At the hearing held on May 16, 1991, Douglas J. Gatta, attorney for the guardian, recited parts of this procedural
history on the record. James Douglas McMahon was then presented as a witness. He testified that he was a psychologist, licensed in New Jersey and a registered rehabilitation agent in New Jersey. He is a graduate of Spring Hill College (a Jesuit college in Alabama) with a masters degree from the University of North Carolina, a doctorate in psychology from Montreal University and is a diplomate in the Society of Psychologists. He is a member of the American Psychological Association, the New Jersey Psychological Association, the Canadian Psychological Association and the National Rehabilitation Association. He is also a licensed psychologist in Canada.
Dr. McMahon has been in active practice as a psychologist since 1962 with a varied work experience. He has taught psychology at Seton Hall University, the University of North Carolina and has lectured in this country, in Canada, at the Soviet Academy of Science in Moscow and the Israeli Academy of Science in Tel Aviv.
Dr. McMahon was found to be qualified as a psychologist.
He testified that he was asked by the family shortly after the accident of 1979 to "orchestrate" a rehabilitation plan. At the time Leonard was in a vegetative state. He explained that this means there was no input of information into his brain, no processing of information nor any output.
Dr. McMahon, working in conjunction with general medical coordinator, Dr. Nicholas Yatrakis, and psychiatrist, Dr. Laszlo Litkey, put in place a plan that moved Leonard from the hospital to Kessler Institute, then to Toms River Convalescent Center, and finally to his mother's care at home. He went from a vegetative state where his prognosis was bleak to his present condition.
The most dramatic change occurred after 1986 when Leonard left the convalescent center to enter his home to be cared for by his mother and guardian. In 1988, a computer was placed into his home. At the time he was reading at 50% of second-grade
level. Within two years he achieved a score of 50% of eighth-grade level and now he is at 90% of 12th-grade level.
Dr. McMahon was of the following opinion:
His long-term memory is less spotty then it was. That is to say that the capacity to put information into his neurological data bank and to retrieve it after other information has taken place. His memory for short-term information represents a bit of what we would call dysarthria which essentially means there is a delay in giving feedback, so that his answers may not be as spontaneous as some others but they're quite adequate, given the processing time involved.
Q. So your conclusion is that Leonard has memory?
A. Leonard has most adequate short- and long-term memory.
He has the capacity from a psychological point of view, and from that psychological point of view, we try to provide evidence for the physician to help make that judgment or ultimately to make that judgment, frankly.
In answer to your questions, yes, he has such capacity from a psychological point of view.
Asked by the court about the recent test, the witness indicated it was the Michigan test for asphasia, the reading subsection, in which Leonard scored 90% of 12th-grade level in March 1991.
When discussing another standard test, Dr. McMahon was forthcoming and candid, advising that:
When you put the verbal intelligence and the performance intelligence together, you get a full scale IQ of 87, which is dull normal.
Q. So what you're saying is that physically -- he is less apt physically than he is mentally?
A. Correct. He is, in my opinion, still dependent physically.
All in all, I concluded from the testimony of Dr. McMahon that Leonard made remarkable strides in cognitive rehabilitation, was aware of his family, friends, assets and property, but was physically limited as far as being able to take care of his daily living needs.
Dr. Laszlo Litkey, who testified next, first revealed an interesting medical background. Born in Hungary, he was educated at, and received a medical degree from, the University of
Budapest in 1952. He completed a four-year residency in neurology and came to the United States in June 1957.
He served an internship at St. Mary's Hospital in Saginaw, Michigan, then worked at the Trenton Psychiatric Hospital from 1960 to 1963, obtained his United States citizenship and passed the New Jersey and Ohio examination for license as a physician in 1963. He remained at the Trenton Psychiatric Hospital, later called the Trenton State Hospital, and was later chief of service when it was called the Forensic Hospital, Vroom Building (Forensic Psychiatric Hospital). He has testified in numerous trials with regard to competency and sanity.
Thereafter, he spent 20 years as a practicing psychiatrist with Fair Oaks Hospital, where he evaluated and treated patients with various mental illnesses. He retired from there in 1987 and does consulting work now. He has been qualified as a "psychiatric expert" in 18 of 21 counties in New Jersey.
The doctor was qualified as a psychiatrist. He described Leonard's condition in 1980 as follows:
At the time, his memory was impaired. He had violent temper tantrums and outbursts. He was struck by fears, depressions and unmodulated and unprovoked anger, various delusional ideas, partially religious type.
His speech was seriously impaired, he has right sided paralysis of his body or paresis.
As the record reveals, Doctor Litkey was obviously delighted with the progress Leonard had made since 1980!
Q. So based upon your experience with Leonard and the care that you have provided and that interaction that you've been talking ...