My Practice receives a lot of enquiries about Mental Capacity Reports but less instructions. Clients do not seem to understand their value and perhaps the same is true for some solicitors. Yet, on a regular basis, my elderly psychiatrist colleagues charge many thousands of pounds to sift through the medical records of deceased people, whose wills are being contested, with no guarantee of any conclusion being reachable.
In contrast, an assessment done specifically to address the testamentary capacity of someone about to make a will is a relatively easy exercise and a brief report from a psychiatrist can be used after death as much clearer evidence, especially if it addresses the specific issues which are likely to be controversial.
As with any instruction, the psychiatrist is looking for the questions the solicitor wants answered, but also what, if any, controversial issues there are in the case. These could relate to the mental state of the individual – classically poor memory – or to particularly controversial proposals – such as leaving an entire estate to one child.
Psychiatrists use these assessments in many aspects of our clinical work but we work best with a full copy of someone’s medical notes. It is also very important to interview an informant who knows the person well as the individual may well not understand either the concerns or the level of their own disability.
A well written capacity report will address all routine aspects of testamentary capacity, any specifics of the proposed will and any controversial issues arising out of the person’s medical notes, the interview with the client and the informant and the mental state examination.
Sadly there is no point at all in filling in a standard form such as a COP3, for this purpose as these forms are extraordinarily poorly designed, with a huge bias towards incapacity, which simply does not allow the sort of detail required to evidence the presence of capacity.
If someone has a large estate one should have a lower threshold for considering a report as the chances of a legal battle, post mortem, are that much higher.
You should probably consider sending anyone where either comments made by the family or the solicitor’s own observations raise even a small doubt as to the person’s ability to remember things – a classic example would be having to go over the same ground at a second meeting. It is no longer, I would submit, good enough simply to
make sure the person has understood. If they cannot retain information, their capacity to weigh it up has to be in doubt.
Lastly, however compos mentis a person seems, if they want to make an inequitable distribution of wealth, my advice would always be to get a report as it is likely to be protective, particularly if it rehearses the rationale behind any controversial decision.