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This section of your training covers the important topic of 'mental capacity'. It is vital that you ascertain, at every initial appointment, that your client has the mental capacity required to make a will or Lasting Power of Attorney. 
Mental Capacity relates to a person’s mental capacity to make a specific decision or take a particular course of action. In other words it is a ‘task-specific’ function and not general mental capacity. 
 
When we relate this to the services we provide, it is crucial that we assess a client’s mental capacity to make a will or Lasting Power of Attorney. In other words, does the client fully understand what action they are about to undertake? 
 
Firstly, the law makes the assumption that a person has capacity and it would be up to other people to prove this was not the case, with evidence in support. So, equally it is very important that when we take instructions for a will or LPA that we are satisfied that the client possesses good mental capacity and that our notes record the meeting accurately, as these notes could be used in case to support the client’s mental state at the time of writing the will or LPA. 
 
The Mental Capacity Act 2005 (MCA 2005) was brought in to try and clarify this area. S1 MCA 2005 established five principles concerning Mental Capacity: 
 
1) A person must be assumed to have capacity unless it is established that he lacks capacity. 
2) A person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success. 
3) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 
4) An act done, or decision made, under MCA 2005 for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 
5) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of a person’s rights and freedom of action. 
 
 
S2(1) states that a person lacks capacity in relation to a matter if, at the material times, he is unable to make a decision himself in relation to the matter because of an impairment of or a disturbance in the functioning of, the mind or brain. S3(1) tests mental capacity against the following: 
 
To be able to make a decision, a person should be able to; 
 
1) Understand the decision to be made and the information provided about the decision. The consequences of making a decision must be included in the information given. 
2) Retain the information – a person should be able to retain the information given for long enough to make the decision. If information can only be retained for short periods of time, it should not automatically be assumed that the person lacks capacity. Notebooks for example could be used to record information which may help a person retain it. 
3) Use/weigh up the information in making the decision. A person should be able to weigh up the pros and cons of making the decision. 
4) Communicate their decision – if a person cannot communicate their decision, for example, if they are in a coma – the act specifies that they should be treated as if they lack capacity. You should make all efforts to help the person communicate their decision before deciding that they cannot. 
 
A person must be able to do all four points above to be classed as having mental capacity. 
 
The MCA 2005 places great emphasis on acting on the principle of ‘best interests’ – it does not define what ‘best interests’ actually is but it does explain the method used to determine whether someone has acted in the person’s ‘best interests’: 
 
1) Ignoring assumptions arising merely from a person’s age or appearance 
2) Considering whether the person may be able to make the decision themselves ay some point in the future 
3) Encouraging the person to participate in the decision 
4) Considering the person’s past and present wishes and their beliefs and values 
5) Taking into account the views of anyone interested in the person’s welfare 
6) Factors the person himself would take into account if were able to do so 
 
In addition, if cases go to court, the most influential piece of case law used is Banks V Goodfellow 1870. The three tests it uses are; 
 
The testator must understand: 
 
1) The nature of the act and it’s effects (That they are making a will and what that means) 
2) The extent of their assets/property (Not necessarily the exact value but a good understanding of what the estate comprises) 
3) Any moral claims against the estate (People whom the testator is morally obliged to provide for – children/partner/other financial dependents etc) 
 
When is capacity an issue? (Making a will) 
 
Lawyers (and indeed Consultants) are not doctors. A client may seem perfectly rational but might be suffering from an impairment of, or a disturbance in the functioning of the mind or brain which is affecting his ability to give valid instructions. He may, for example, have formed an irrational dislike of one of his children, who he is convinced has turned against him and no longer contacts him. The client instructs you to cut him out of the will. It all seems plausible at the time but it is only after the client has dies that you find out he was suffering from dementia – the son had in fact been a model of care, visiting his father frequently and produces telephone records showing hoe often he phoned etc. understandably, the son challenges the will. You can’t take medical advice every time you take an instruction but the basic rule is to err on the side of caution and if any of the following situations arise, it is wise to consider obtaining medical evidence: 
 
1) Where the client is very elderly (over 80 for example) 
2) Where the new will you have been asked to prepare is very different to the current one (or if it is a first will, where the wishes differ significantly from the rules of intestacy) – particularly where a major beneficiary is being cut out. 
3) Where a relative or friend is instrumental in having the will prepared (makes initial contact with Heritage Legal, is present when instructions are given etc) or is he or his family take a significant benefit from the will 
4) Where the client is or has recently been in hospital 
5) Where the client is receiving on-going medication 
6) Where you have difficulty communicating with the client, for example because his speech is slurred following a stroke 
7) Anything in the instructions that causes you concern. 
 
It might seem tactless to tell a client you think you ought to obtain medical evidence to establish their capacity, however once you have carefully explained that the lack of evidence might mean that the validity of the will is later disputed, a client will generally agree to you approaching their GP. This approach does seem to go against s1(s) of the MCA 2005 which states that a person should be presumed to have capacity, but there are 2 points to bear in mind: 
1) if following the client’s death, the will is disputed, those opposing it may have some secondary evidence which casts doubt on the client’s capacity at the time of making the will – for example, 6 months after making the will the client is diagnosed with Alzheimers – the best defense against this would be the evidence taken at the time the will was drawn up. 
2) If, in fact, the client does not have capacity, or may not have capacity, it is better to know at the time of instruction rather than find out after they die. 
 
Process 
The legal team will write a letter, explaining what the client has asked us to do and requesting confirmation that they have sufficient mental capacity to make a will, to the client’s GP. We will send this to the client for them to give to their GP (as otherwise there could be a breach of confidentiality – the GP is unlikely to reply directly to us without express permission from their patient). This also solves the issue of the GP fee for completing the letter as it would be settled between the patient (our client) and the GP. 
 
If the GP confirms the client has sufficient mental capacity to make a will – we simply continue. If the GP is prepared to act as one of the witnesses, this is usually enough to dissuade anyone from challenging the will on the grounds of mental capacity – this would be our preference. 
 
If the GP states that the client does not have mental capacity or may not have mental capacity – we can have a conversation with the client as to whether they would want to pay for a specialists opinion – if the specialist confirms the client does not have mental capacity then we will explain this to the client and cease acting for them. 
 
S45 MCA 2005 also established the Court of Protection specifically to deal with the process of making decisions for those unable to do so for themselves – the court has the same powers as the High Court. S57 established the role of the Public Guardian whose primary function is to establish and maintain a register of enduring and lasting power of attorneys .and to supervise deputies. 
 
Most of the ways in which the affairs of the elderly are looked after work on the principle of trust. Aside from legal obligations, trust is the cornerstone of the work of attorneys and deputies – this trust can be abused. Any legal practitioner dealing with elderly clients will from time to time have detailed access to their financial records, will see clients on their own (to discuss wills and LPAs), will discuss client’s relationships with their families and will be taken into the confidence of client’s relatives. In any of these circumstances, a practitioner may see of hear things which cause concern: 
 
• Unaccounted for bank withdrawals 
• Sudden and irrational changes to wills of LPAs 
• Relatives unduly keen to be made co-signatories on accounts 
• Relatives reluctance to let the client see you without them being present 
• Home visits which may reveal unsuitable living conditions 
• The client may become agitated when talking about one particular person. 
 
Great sensitivity is called for but it may be appropriate to contact the client’s doctor or local authority care manager or speak to a charity specializing in these matters (Action on Elder Abuse – www.elderabuse.org.uk. 
 
Anyone concerned about how an attorney or deputy is carrying out their role and/or suspects financial abuse of a vulnerable adult can contact the Office of the Public Guardian. 
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