Plenary Session 5

Aims of the seminar To

Identify the legal tests used to assess a person’s mental capacity to make a Will or a Lasting Power of Attorney

Examine through case law how the Courts apply the legal tests

Consider the interaction between health and welfare LPAs and Advance decisions

Assessment of capacity - essential? Legal recognition of actions – Will, LPA etc are

dependent on mental capacity

Different common and statutory tests - function specific

Medical condition / diagnosis – Alzheimer’s not the legal test

Medical evidence supports your/ Court’s determination

Why get medical evidence ? The uncertain/ hard cases

To try to minimise the risk of a family feud

Legal requirement - Deputyship / Statutory Will

To reduce risk of criticism / negligence claim

May be required to support financial abuse claim - vulnerability

Allowing the client to execute a Will which is bound to lead to challenge may result in a costs order

Different approach by different courts !

Mental Capacity Assessments- what lawyers need

Not about diagnosis of illness or mental condition

Any medical report must address the specific legal test - Will / LPA /Marriage

Contemporaneous medical report will usually carry more weight with the Court

Fact specific and context relevant

Mental Capacity to make a WillBanks v Goodfellow – the legal test

A testator shall

understand the nature of the act and its effects;

understand the extent of the property of which he is disposing;

be able to comprehend and appreciate the claims to which he ought to give effect;

and no insane delusion shall influence his will in disposing of his property.

Loose legal translation ! Does T understand

1. that s(he) is making a Will not a shopping list !

2. the approx value of their estate

3. the extent of the family and friends and their involvement in T’s life

And that no delusions have influenced T’s decision

“The Golden Rule” Stems from Kenwood v Adams 1975

Court of Appeal since stated not a rule

Unpopular with solicitors as often very difficult to find Drs / medical staff willing to be involved as

Ideally the Will is witnessed by Doctor who will have examined the patient and if there was a previous Will discussed it with the patient and then recorded his/her findings !!

“A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client's consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator's own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client's agreement). I do not think [the solicitor] is to be criticised for deciding to make his own assessment “

Wharton v Bancroft

Points on capacity

• Capacity is time and issue specific

• But the person may already have

declining mental health

“the law upholds the right of elderly

people to leave their property as they

choose even if their mental faculties

have declined considerably”

Simon v Byford

Simon v Byford 2014 EWCA

CA Held no requirement that T should understand or remember the extent of anyone else’s property

Testamentary capacity is not a memory test

Knowledge & approval of the actual Will – is the ability to understand the choices that have already been made.

11

Key v Key 2010 (1)

T( 89) made a Will 7 days after death of wife ( married 65 years)

Will left bulk of the estate to 2 of the 4 children

Will challenged - lack of capacity /knowledge and approval

T already had short term memory problems when he made the Will ( in GP notes)

Key v Key 2010 (2)

Judge critical of Sol’s failure to observe the “golden rule”/lack of attendance note

Two medical experts - evidence of Dr who examined T preferred where differences rather than eminent expert

Judge held T lacked capacity , even though a rational/fair Will as other children had received life time gifts from T

But Will was radical departure from earlier Wills

T in a vulnerable state and likely to be influenced by who ever was caring for him.

Emergency wills X v Woollcombe Yonge 2000

Duty to prepare will promptly – 7days normally acceptable but no absolute period

BUT “Where there is a plain and substantial risk of the client’s imminent death anything other than a handwritten rough codicil prepared on the spot for

signature may be negligent” This causes solicitors sleepless nights !

Failure not to verify medical condition with Doctor not negligent

McCabe v McCabe 2015 M had 2 sons S &T – sons disliked each other

M made Will in 2007 - treated S &T equally

In 2009 M revoked EPA and made LPA appointing S as her attorney

T claimed M’s capacity declining and that S exploiting M so reported suspicions to Police and LA

M very annoyed at T’s behaviour so made new Will in 2011 in favour of S - M died in 2011

15

McCabe v McCabe 2015

Dr J gave expert evidence - critical of Dr A’s

methods but agreed M understood that she was

making a Will

The issue for Ct was did M’s dementia mean

that her decision to disinherit T was due to false

belief or a delusion?

HELD M not irrational in her belief that T had

gone to the police and that she had told solicitor /

social worker that she was upset

16

McCabe v McCabe 2015

T challenged Will - lack of capacity , want of knowledge and approval and undue execution

Will drafted by Solicitor - not a specialist -witnessed by Consultant Geriatrician (Dr A)

Solicitor did not tell Dr A full background/ history

Dr A aware M had dementia

M scored 25/30 on MMSE test Dr A considered she understood that she wanted to change her Will

17

McCabe - Key points

Valid Will despite dementia

Sol had failed to satisfy golden rule as Dr A

not properly instructed on test or

background/ context

Detailed note of conversation with testator

regarding changes important

For false belief to be delusional it must be one

that no rational person would believe.

First instance decision - 171 page judgment !

18

Burns v Burns 2016 CA E’s previous 2003 Will gave more to son A

because of previous gift by E to son B

A &B disliked each other but loved E

E’s 2005 Will split assets equally between

sons

A challenged 2005 Will alleging :

Lack of testamentary capacity at time of

execution

Lack of knowledge and approval

19

Burns v Burns (2)

E had two MMSE tests and other assessments

in 2004 relating to her care needs

Expert medical evidence in court that E had

memory issues / difficulty planning simple tasks

Experts supported A’s claim

No file note from solicitor who admitted little

knowledge of the “golden rule”

20

Burns v Burns 2016 (3)

Judge Held Will Valid !

Solicitor experienced , it was a simple Will , he saw her

alone

E knew it was the Will she had requested in 2004 (

relying partly on Parker v Felgate )

A appealed ( the sum involved £26,000!)

CA - upheld the original decision - high bar to

overturn decision on facts - that the Judge reached a

conclusion that no Judge acting reasonably could have

made

21

Mental Capacity Act 2005 Different legal test to common law tests

Applies to Lasting Powers of Attorneys and other decision covered by MCA 2005

S 1(2) MCA 2005 - A person is assumed to have capacity unless it is established that he lacks capacity.

If assessing capacity to make a LPA and a Will there are 2 different tests which should not be conflated

Practice point

A person might lack the capacity to make a Will (

especially if wealthy with complex family

arrangements but still be able to make the

decision to appoint an attorney under a LPA

The Will applies the common law test

The LPA applies the statutory test under MCA

2005

S3 MCA 2005 Person is unable to :

To understand the information relevant to the decision

Retain that information

Use or weigh that information as part of the process of making the decision

Communicate the decision whether by talking, using sign language or any other means.

MCA 2005 test Statutory definition - MCA 2005 S2

Can be temporary or permanent

Decided on the balance of probabilities

It is the lack of capacity at “the material time”

2 stage test - is there impairment /disturbance to the brain

Does that disturbance mean the person lacks the capacity to make that decision

25

Lack of Capacity Statutory definition - MCA 2005 S2

Can be temporary or permanent

Decided on the balance of probabilities

It is the lack of capacity at “the material time”

Note MCA 2005, s1(2)

A person must be assumed to have capacity

unless it is established that he lacks capacity

Welfare and Health decisions

Welfare LPA

S 5 MCA acts in connection with care and

treatment

Court orders – welfare and health

Ct appointed Deputy to make decision

Advance decisions

Advance Decisions

Seeks to codify the previous common law

position

S25 MCA 2005 - action must be valid

and applicable

If for life threatening treatment AD must

be in writing, signed and witnessed

28

HWLPA v Advance Decision HWLPA must be registered.

If HWLPA registered then valid applicable AD created - the AD has priority

If valid applicable AD created and then HWLPA registered with power to consent to life saving treatment the LPA will have priority.

Can cause practical problems if unconscious patient re paramedics doing CPR / A&E need make immediate decisions

Use of “donor style card”

29

Acts in connection with care and Treatment – S 5 Gives authority for “ acts in connection with

care or treatment - MCA 2005 S5

Authorises - washing / dressing etc - it does not give a general authority

More than one person can have such authority at the same time .

Independent medical capacity advocates for significant care /medical decisions if no family or LPA

Cannot overturn valid advance decision/LPA

30

Who decides where will Granny live ?

If family disagree with LA care package – a welfare LPA gives them legal status

Ct order required if dispute about contact / visitation rights and no HW LPA

Ct will expect to see evidence that attempt has been made to resolve through meetings/ mediation

Kirklees Decision Joint decision by LA/ NHS trust to place X in home

against wishes of his son (S)

DOL authorisation to place X in home without involvement of S who was a GP

S had disagreed with X’s consultant re care package

S ‘s joint complaint to Health / LG ombudsmen Upheld

Ref Joint Investigation into complaint no 11004229 against Kirklees Metropolitan Borough Council and Southwest Yorkshire Partnership NHS Foundation Trust –November 2013

32

Kirklees Decision (2) . The couple suffered a needless loss of dignity, while

their son felt ignored, undermined and excluded from any decision about their care.

. Families and carers can have the key to understanding the needs of their loved ones. That’s why public services must, in law, involve families and carers in making life changing decisions for vulnerable people.”

33

Drs v Lawyers Medical evidence - can be expensive and

many clients hostile when suggested

Drs under time pressure but so are lawyers -

risk of negligence claim if we do not chase –

prompt response important

Quality of medical evidence can be variable

Aging population , financial matters more

complex- demand will increase

What next ? Private Client Lawyers trying to help client /

patient

Would a standard form of letter for

assessment of Wills/ LPAs help GP’s with a

model example reply ?

Clients should expect to pay a fee to Dr

Postcode lottery whether GP will do an

assessment so should all assessments

outsourced ?

Further Information Grandpa on a Skateboard by Tim Farmer

ISBN 978-1-78133-179-8

Assessment of Mental Capacity - A Practical

Guide for Doctors and Lawyers

ISBN 978 1784 460389

National Mental Capacity Forum

QUESTIONS ?