CASE STUDIES

Medical complexity

I conducted a capacity assessment for a deputyship application for property and financial affairs (COP3) of a gentleman, Mr. G. with a rare condition characterised by seizures and other organ pathology. He suffered a head injury sustaining bleeds on the brain. Owing to the complexity of his problems, I had to first ascertain a means of communication with him by obtaining information from his medical record including an assessment by a speech and language therapist. In some cases of brain injury, communication aids have to be utilised.

When completing the COP3 form the question, “Do you consider there is a prospect that the person might regain or acquire capacity in the future in respect of the decision to which the application relates?” needs to be answered, and if the answer is “yes” it is necessary to provide a likely time frame.

In view of the complexity of Mr. G’s medical history and brain injury, I reviewed the brain scans, and the answer to that question required a search of the medical literature, (which I cited on the COP3 form), as recovery of capacity in a person with a brain injury is possible.

[Permission of the family / deputies obtained, initial changed]

Legal complexity

I am often requested by solicitors to undertake testamentary capacity assessments in cases involving older people changing their wills (as per the Golden Rule of testamentary capacity). In some cases they are requested purely because the testator is advanced in age and intends disinheriting a family member; the assessment is required to confirm that the testator was ‘of sound mind’ at the time of changing the will, not being coerced in any way, and that they understand the details of the proposed will (estate , beneficiaries and potential claimants). In other cases, the testator has a diagnosis of cognitive impairment. One of the cases in which I assessed testamentary capacity involved a proposed new will in which the testator intended disinheriting a family member. The testator in this case did not have cognitive impairment and did indeed possess testamentary capacity. My report which detailed the medical background of the testator as well as the legal circumstances, and testamentary capacity assessment, is likely to be submitted to court as evidence should the will be contested in the future. My thorough report will reduce the chances of a successful claim.

Another case involved an older gentleman with serious medical problems who wanted to ensure that his long term partner inherited a defined share of his estate after his death. In the UK, unmarried partners (even if cohabiting for years) do not have automatic rights to inherit, and in the absence of a will, his entire estate would go to his children.

[These cases are a synthesis of several similar cases]