Testamentary Mental Capacity Assessments

Testamentary Mental Capacity Assessments

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For a Will to be valid, the person making it (the testator or Will-maker) must have testamentary capacity. Testamentary capacity is the legal threshold required to be able to make or change a Will and to make all of the important decisions within that document. To determine capacity to make a Will, mental capacity assessment is conducted under the rules established in the old English case of Banks v Goodfellow. This case sets out four requirements that a person must meet to have testamentary capacity.

It is important that the testator (the person making the Will) knows that they are executing a legal document that will distribute their assets after death. They should understand that this document cannot be changed easily and so they should not make decisions regarding the contents of the Will lightly.

Generally, the testator should know the value of their assets to a reasonable extent. The do not need to know the fine details of their estate, and the assessor would seek the understanding of their estate rather than the full knowledge of their estate.

There is a general assumption at law that testators should leave part of their estate to those to whom they owe a ‘moral duty’. Usually, testators are thought to owe a moral duty to their spouses and children, and possibly others under their care.
If a testator wants to leave one of these people out of their Will or leave them a significantly reduced share compared to other beneficiaries, an assessor must ensure that they understand what they are doing and take detailed records of why. The assessor only needs to establish their ability to include and exclude people, and do not need to justify the reasons to the assessor. Making a decision that is unpopular or unusual is not in itself a sign that someone lacks capacity. Even a decision that seems unwise to other people can be a valid decision if the testator understands the consequences.

The assessor will conduct a mini mental state examination to establish that the Testator’s cognition is intact, and not affected by any mental health issues that may affect their views of potential beneficiaries.

According to the Court of Protected guidelines given on the new COP3 form, an appropriate Mental Capacity Assessor include medical practitioners and Social Care Professionals. These professionals include registered Doctors, GPs, Nurses, Social Workers, Occupational Therapists, Psychologists, Physiotherapist, speech and Language Therapists.
It must be noted that being a registered professional listed above does not automatically qualifies one to do a mental capacity assessment. It is important for these professionals to have the necessary and requisite knowledge of the relevant law and skills in the conduct of mental capacity assessment. Mental Capacity Consult Ltd provides a comprehensive mental capacity assessment training to equip all the above listed professionals to become experts in completing mental capacity assessments and writing reports that will meet the strict scrutiny of the Court of Protection and other Courts. All our Experts are fully trained by our Mental Capacity Expert Mr Peterkin Ofori. You can book your training here.
We take instructions from Solicitors, the Courts, Social Services, and members of the public. We also get a lot of recommendations from Barrister to their instructing Solicitors.
We offer face to face assessment and virtual assessment depending on the circumstances. We cover the whole of England and Wales and our prices are fixed irrespective of location.

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Frequently Asked Questions (FAQs)

How do we conduct mental capacity assessment ?

Mental Capacity Consult’s assessments are conducted in a friendly, kind and a calm manner. We prefer to do the assessment in clients home so that they feel safe and comfortable to afford them the best opportunity to express their wishes, and to engage in the assessment.  

Mental capacity assessments are done through talking and engaging in conversation with the client. We do not use any structured format to conduct our assessment, and the conversation is mostly client led, while we facilitate the directions to make it relevant to the assessment we are undertaking.  We do not conduct any diagnostic test. We do not conduct any formal memory or medical test on our client. Our sole role is to assess the client to establish if they have the ability to make the relevant decision.  

We quickly build rapport with our clients using the environment and trying to establish their interests the moment we meet them to get them to relax. For instance, we shall quickly engage a client in discussions about their day, family photos, pets, or anything we find relevant within their immediate environment that we may consider to be relevant to them. This is designed to help them to settle down and comfortable. 

What it the Length of Time of assessment?

We aim to afford all our clients the opportunity to explore and use their ability to make the relevant decisions. Our assessments commence the moment we meet the clients. We give our clients enough time to feel comfortable, build rapport, and able to engage us. The assessment would go on until we are satisfied that we are able to form an opinion. We are very conscious of the respect and dignity of clients. Therefore, we make a conscious effort not to patronise our clients for the purpose of going through every element of a particular mental capacity test.  

So typically, one mental capacity assessment or mental capacity test as some people like to call it may take between 45 minutes to 3 hours depending on the type of assessment and the clients. There are occasions where some assessments take more than a day, or there may be several visits to assist in the formation of opinion.  

Can a Family Member be present for the mental capacity assessment?

According to s.1(3) of the Mental Capacity Act 2005 (MCA 2005) it is a fundamental principle of any mental capacity assessor to ensure that all practicable steps are taken by the mental capacity assessor to ensure that the individual being assessed has been given the opportunity to make a decision being considered. The role of the Mental Capacity Assessor is to ensure that the person being assessed first, has the ability to make the specific decision, and secondly, has been given the opportunity to make the specific decision.

The presence of family members during a mental capacity assessment can have both advantages and disadvantages. On one hand, having family members present can provide valuable insights into the individual’s day-to-day functioning, behaviour, and cognitive abilities. They may be able to provide important background information, and help the assessors gain a better understanding of the person’s overall mental state.

On the other hand, the presence of family members might inhibit the individual being assessed. Some individuals may feel more comfortable and at ease with their loved ones present, while others may become more anxious or self- conscious.

Additionally, there may be situations where the presence of certain family members could potentially create conflicts of interest or interfere with the objectivity of the assessment.

Ultimately, the decision regarding who can be present during a mental capacity assessment is usually made by the assessing professional, taking into account the specific circumstances and the individual’s best interests.

How do you decide if a person has mental capacity?
In the Mental Capacity Act 2005 a decision about whether or not the person has capacity must be made on the balance of probabilities. Thus, for example, if the weight of the evidence is 49–51% that the person has capacity then it must be decided that they do, and vice versa.
Who can carry out mental capacity assessment?

The whole of the Mental Capacity Act 2005 does not identify any person/profession to do mental capacity assessments. Therefore, the act requires the decision maker to make the decisions.

The decisions makers are the relevant persons themselves (P). And that is where the 1st principles under the Mental Capacity act 2005 comes in. That is where the Act expects everyone to have the mental capacity, and therefore we should all assume that the person making the decision has the mental capacity to do so.

However, if there are evidence to suggest that P may not have the ability to make a decision, i.e., understand the relevant information, use and weigh them, then the responsibility falls on person (D) who is seeking to rely on P’s decision to ensure that the decision P makes is in line with the Mental Capacity Act 2005.

D is anyone who is seeking to rely on the decisions P makes to take any form of action because of P’s decision. They can be families, carers, professionals such as accountants, Deputies, Doctors, Social Workers, nurses etc. These people have an obligation under the Mental Capacity Act 2005 to ensure that P has the mental capacity to decide the relevant matter where there is reasonable evidence to suggest that P may lack capacity. If the decision is complex, then a health or social care professionals like a Mental Capacity Consult Consultant can be appointed to assess the person’s ability to make informed decisions.

When is an expert mental capacity assessment required?

This depends on the complexity of the decisions that a person is required to make. Carers are. not expected to do a mental capacity assessment for routine cares where P is either likely to consent or done in their best interest. However, where the decision is complex, such as managing property and financial affairs, litigation, making a Will, marriage, managing health and welfare, accommodation, and care, selling a house, and or making a substantial gift, then. an assessment may be required.

In such instances, if there is evidence of an impairment, and a properly supported process does not enable the person to make the specific complex decision. Or another person may doubt the person’s ability to make the specific decision, then a mental capacity assessment would be required. All those taking some action on behalf, or relying on decision made by P in such complex situation will be expected to be able to assess capacity or seek professional opinion from Mental Capacity Consult Ltd.

What practicable steps are to be taken before and during mental capacity assessment?
  • Familiarize yourself with relevant legal and ethical guidelines.

Understand the laws and regulations pertaining to mental capacity assessment in your jurisdiction. Familiarize yourself with the relevant ethical guidelines and professional standards to ensure your assessment aligns with best practices.

  • Obtain informed consent.

Before proceeding with the assessment, obtain informed consent from the individual being assessed, if possible. Provide clear information about the purpose, nature, and potential outcomes of the assessment to ensure their understanding.

  • Arrange a suitable day and time for the assessment.

Ensure that the date and time arranged for the assessment are suitable for the client. Ask questions about the sleeping patterns, medications and types which are likely to affect their cognition, the time such medications are taken, when the client is more likely to be alert. This information is considered together to arrange a suitable time to see the client. 

  • Create a suitable environment.

Ensure the assessment takes place in a comfortable, private, and conducive environment that promotes open communication. Minimize distractions and interruptions that may hinder the individual’s ability to concentrate and express themselves.

  • Use appropriate communication methods.

Tailor your communication style and methods to accommodate the individual’s needs. Consider their preferred language, sensory impairments, or any cognitive or communication difficulties they may have. Use clear and simple language, provide visual aids if necessary, and allow ample time for responses.

  • Gather relevant information.

Collect comprehensive information about the individual’s background, medical history, and any relevant social or cultural factors. Consult them healthcare providers, family members, or caregivers for additional insights, with the individual’s consent if required.

  • Employ communication tools.

Utilize validated and standardized communication tools known to the individual to ensure consistency and clarity. These tools can help assess specific domains of mental capacity, such as understanding, decision-making, or communication.

  • Ensure assessment of capacity is for a specific decision.

Focus the assessment on the individual’s capacity to make decisions regarding a particular issue or context. Avoid making global judgments about their overall capacity. Tailor the assessment to the decision at hand and explore the person’s abilities and limitations in that specific area.

  • Document the assessment process.

Maintain clear and accurate records of the assessment process, including the methods used, observations made, and responses obtained. Document any relevant factors that may have influenced the assessment outcome. 

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