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Guidance to lawyers on testamentary capacity

29 November 2019

I have regularly provided medical opinions about capacity, including testamentary capacity, in situations where this capacity is in doubt. The loss of capacity for decision-making is a tragic component of many neurodegenerative illnesses, but can also occur at younger ages in some of those with learning difficulties, head injury or treatment-resistant mental health problems. I have also participated in providing expert opinions regarding the likely capacity for such as making a new will, after that person’s death.

Studies have shown high levels of incapacity for those who are general hospital inpatients or residing in Aged Residential Care. With the aging of the population, this is far from being an academic concern only.

I have also provided teaching to legal groups about how to assess capacity, with particular reference to testamentary decision-making, with my colleague Professor Kate Diesfeld (AUT). The premise of our teaching programme was that all professional groups, especially lawyers, should be able to undertake a capacity assessment of clients. This is a perfectly achievable skill for most professional groups. Lawyers should be able to identify “red flags” where capacity might be in question, and then undertake the interview which would establish whether the person had capacity to proceed with giving instructions for a new will.

I admit that there remain cases where capacity is equivocal following assessment, or the dynamics in the situation are complex, or where influence is considered possible. In these situations it is always advisable to obtain a second opinion about capacity, for example from a medical or health practitioner. But there is nothing to prevent lawyers from assessing capacity and being confident of its presence or absence in most cases. In our view, this should be part of lawyers’ everyday practice.

I was therefore alarmed to read the article by Sally Morris and Freya McKechnie, summarising the judgment in Sandman v MacKay [2019] NZSC 41 (“Supreme Court provides guidance to lawyers on testamentary capacity”, LawTalk 933, October 2019, pages 29-31). The majority decision appears to state that the lawyer should proceed with preparing and executing a new will, despite any concerns about the person being incapacitated. Any concerns about capacity should be resolved after the person’s death. I note that Elias CJ dissented from this part of the judgment, saying that she doubted that “a solicitor who knows a client to lack testamentary capacity is nevertheless obliged to carry out the client’s instructions, leaving capacity to be assessed after death…”

As someone who provides post-mortem capacity opinions for historical decisions, I would like to say that certainty about the person’s capacity is often not achieved based upon the (often flimsy) medical or legal records available from the time of the decision, and therefore, from a practical point of view, this is hardly a satisfactory way of bringing closure to the issue. Furthermore, it is costly, time-consuming and emotionally draining for many of the parties in the dispute.

I also believe that a lawyer, as a member of a professional group, should be acting both for the client and in their best interests, and where these are in conflict, for example, where someone lacking capacity is giving unwise instructions about their new will, the lawyer should have the confidence to pause proceedings and get an assessment done. What is the point of preparing and executing, and charging for, a new will, when that instrument is going to be invalid? Furthermore, international studies show that the degree of financial abuse that is inflicted on older people is shocking, with estimated figures from the US running to the billions of dollars each year. It is my contention that lawyers should be willing to protect their clients, in the same way that the banks have now signed up to. I hope that this obligation to one’s clients might be present in the Code of Conduct for the legal profession.

When appointing a new Enduring Power of Attorney, the lawyer, legal executive or trustee officer witnessing the signing by the attorney is required to assert that the person understands what they are doing, understands the risks and there is no reason to believe that the person has incapacity. This implies to me that those involved witnessing this document are expected to know how to assess capacity for this decision.

The medical profession has had to be dragged into confronting the issues around incapacity, whether for surgical procedures or accepting admission into aged residential care. Slowly, confidence and competence in this area has increased amongst doctors and other health professionals, due to training and open-discussion. I hope that the legal profession might commit to the same path, and I hope that the minority decision in this case will come to be seen as more practical, protective and just for clients.

Dr Mark Fisher
Mental Health Service Clinical Director, Auckland District Health Board, Auckland.

Last updated on the 29th November 2019