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How to... Judge if a patient can make a will

The MDU's Dr Jacqui Phillips explains the 'testamentary capacity' criteria patients must meet.

The Mental Capacity Act sets out clear legal requirements for assessing competence in adults over 18 (Photograph: Mark Thomas / Science Photo Library)
The Mental Capacity Act sets out clear legal requirements for assessing competence in adults over 18 (Photograph: Mark Thomas / Science Photo Library)

Over the past five years, the Medical Defence Union (MDU) has opened more than 200 case files to advise members who have been asked to assess a patient's capacity when making a will. We have also answered many similar queries on our advice line.

Some doctors are concerned that a living patient may not be of
'sound disposing mind' to make a will; others may have been asked for a retrospective assessment due to a dispute over a deceased patient's will.

What GPs need to know
GPs undertaking an assessment of a patient's capacity to make a will (known as testamentary capacity) should have an understanding of its legal meaning as well as knowledge of their role in assessing a patient's capacity.

They should also bear in mind the ethical guidance from the GMC that they must recognise and work within the limits of their training and competencies.

What the law says
The person making the will is known as the testator (or testatrix if female).

The testator should be able to demonstrate the necessary understanding both when giving instructions to their solicitor to draw up a will and when signing (executing) the will. GPs also need to bear in mind the Mental Capacity Act 2005 and the relevant case law in this area.

In England and Wales, the criteria for testamentary capacity were set out in the case of Banks v Goodfellow. It concerned a patient with delusions who passed his sizeable property estate to his teenage niece.

The criteria for testamentary capacity set out in this case were that the testator should:

  • Understand the nature and effect of making the will.
  • Understand the extent of the property of which he is disposing.
  • Appreciate the claims (from potential beneficiaries) to which he ought to give effect.

Judging capacity

The Mental Capacity Act sets out clear legal requirements for assessing competence in adults aged over 18 in England and Wales.

It states that a person lacks capacity if they fail one of the following criteria:

  • Understanding the information relevant to the decision.
  • Retaining the information (even if only for a short period).
  • Using or weighing that information.
  • Communicating the decision (by any means).

The law in Northern Ireland is similar to that in England and Wales.

Scottish law
In Scotland, to have testamentary capacity the person must comprehend what a will is and what would be the consequences of making one.

While Scottish courts are likely to follow the tests defined in English law for the making and revocation of wills from the case of Banks v Goodfellow, Scotland has different legal requirements for assessing capacity.

The Adults With Incapacity (Scotland) Act 2000 is applicable to people over the age of 16 and states a person lacks the capacity to make a specific decision if they are incapable of:

  • Acting.
  • Making decisions.
  • Communicating decisions.
  • Understanding decisions.
  • Remembering a decision.

Guidance
The British Geriatric Society guidance entitled The British Geriatric Society Guidelines on Capacity and Testamentary Capacity and the BMA and Law Society's joint booklet entitled Assessment of Mental Capacity, Guidance for Doctors and Lawyers may also be useful resources for doctors.

Advice for GPs
When considering testamentary capacity, the MDU advises GPs to:

  • Only assess testamentary capacity in relation to a particular will.
  • Consider whether you feel competent to assess testamentary capacity. If not, then you should not do so, as the GMC requires that doctors recognise and work within the limits of their competence.
  • Clearly document all assessments and opinions, including the identities of any other persons present.
  • Be careful not to equate the presence of psychiatric illness with an absence of testamentary capacity.
  • Ensure patients have an understanding of the implications of making a will and that it can be revoked.
  • Ensure both you and the patient have a broad knowledge of the extent of the property in the will, although not necessarily the precise value. This is required for the patient to have made the will and for you to assess their capacity.
  • Consider whether the patient has the ability to recognise the number and nature of likely claims on their estate.
  • Consider seeking a second opinion (or advise the patient or their solicitor to do so) if you are unable to form a view as to the patient's testamentary capacity.
  • Remember that you are under no obligation to provide a report on the patient's testamentary capacity at a particular point in time.
  • Remember that if you witness a will, it may be inferred that you have made a formal assessment of the patient's testamentary capacity.
  • If you haven't assessed a patient's testamentary capacity and are then asked to provide an opinion retrospectively, you will only be able to provide factual information from the patient's clinical records and you could include any recollection regarding the patient's capabilities.
CPD IMPACT: EARN MORE CREDITS

These further action points may allow you to earn more credits by increasing the time spent and the impact achieved.

  • Consider your practice's approach to responding to requests for assessment of testamentary capacity.
  • Consider holding a practice meeting to discuss testamentary capacity. Make sure all GPs are aware of its legal meaning, as well as having a knowledge of their role in making an assessment.
  • Draw up a practice protocol for dealing with requests for assessment of testamentary capacity and make sure it is circulated to all GPs and staff.

Save this article and add notes with your free online CPD organiser at gponline.com/cpd Take clinical tests and claim certificates for CPD at myCME.com

  • Dr Phillips is a medico-legal adviser at the Medical Defence Union, www.the-mdu.com
  • GPs wanting specific advice on an assessment of testamentary capacity should contact their medical defence organisation

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