Testamentary capacity & competence assessment: questions of relevance given increasing ageing and dementia in Australia

This is a short article extracting some key content from an article pre-publication (hopefully in an eminent peer-reviewed journal) by Jane Lonie. The intention is that this article will be a primer for further reading in this area as relevant to your particular cases/clients.

Capacity is:
• the ability to make and communicate a decision;
• not a unitary or global concept;
• domain specific: particular to the type of decision being made (e.g. personal, health, financial); and
• decision or task specific: different for every decision made, even within one domain.[1]

“Under the common law, and consistent with Article 12 of the UN Convention on the Rights of Persons with Disabilities, a person is always presumed to have capacity to make decisions. Where a person has dementia this may be a trigger for a capacity assessment if a decision needs to be made.”[1]
Capacity cannot be extrapolated from one decision to another. For example, a person’s capacity to consent to medical treatment cannot be inferred from their capacity to make a decision to:
• execute a power of attorney;
• write a will;
• enter a contract or deed; or
• appoint an enduring guardian.[1]

There is concern that the assessment of competency and the associated legal concept of Testamentary Capacity is an emerging medico-legal system issue, as well as a concern for medical and legal professional practitioners. The assessment and scientific study of capacity in older adults has emerged as a distinct field of clinical and research activity for psychologists [2].

There is evidence of increasing debate about ‘competence/capacity’, which appears to be driven by a growing awareness of the convergence of societal trends [2], such as ageing of the Australian population, a growing incidence of dementia and recognition of other diseases as contributors to cognitive decline and disability, a trend to de-institutionalisation of mental and physical health care and a rise in the rights of individuals to self-determination (such as those with disabilities, people making healthcare-related decisions, consenting to various legally-binding actions, such as contracts, wills, etc). All of these have an underlying question of ‘capacity’.

Cognitive loss that occurs in dementia represents the most common threat to
the maintenance of testamentary capacity and subserves its eventual
inevitable loss.

Current situation: who does ‘testamentary capacity assessments’?
When the validity of a will is challenged on grounds that the testator did not possess the cognitive capacity to meet the required legal test at the time of writing, Neuropsychologists are frequently called upon to provide an expert opinion as to the testator’s capacity. Geriatric Neuropsychologists are specialist psychologists with expertise in brain behaviour relationships and extensive training in the objective assessment of cognitive functioning in range of neurodegenerative illnesses.

An expert opinion regarding testamentary capacity, whether provided by geriatrician, psychiatrist, neurologist or psychologist, will reflect information gathered from multiple sources: including relevant medical and legal documents, clinical interview with the testator and relevant family members, cognitive, functional and mood assessment.

The standardised and objective measurement of cognition (i.e. the level at which an elderly testator is performing in a range of different cognitive areas in direct relation to their age peers), in informing an opinion on legal capacity, represents a unique contribution of Clinical Neuropsychology.

The resultant detailed profile of a testator’s cognitive strengths and weakness in turn provides an ideal basis from which an individualised approach to facilitating capacity may be formulated.

What is the Testamentary Capacity required for a Will?
In order to write, or amend a legally binding will an individual must be deemed to retain testamentary capacity. The legal or task-specific criteria for testamentary capacity are drawn from the renowned case of Banks vs Goodfellow [3], wherein it is said a testator must retain the ability to:
1. Understand the nature of the act of making a will and its consequences
2. Understand the extent of his assets
3. Comprehend and appreciate the claims of those who might expect to benefit from their will
4. Understand the impact of the distribution of the assets of their estate
5. Be free from any disorder of mind or delusions that influence the disposition of their assets

The task specific criteria for testamentary capacity have been translated as requiring the combined cognitive functions of remembering, reflecting and reasoning [4]. Remembering – what one’s assets are and who might make reasonable claim to these; reflecting and reasoning as to the legitimate expectations of beneficiaries and the impacts of distributing one’s assets in a specified manner.

Whereas memory impairment may at times become apparent within the context of informal conversation or be detected via the use of relatively brief cognitive screening instruments, reasoning ability represents a higher-level cognitive function that is more difficult to detect, even with the use of cognitive screening measures.

Neither testamentary capacity nor dementia, are an all or nothing concept. It is possible for an individual with a diagnosis of dementia to satisfy all or only some of the elements of the legal test for testamentary capacity i.e. to retain the capacity to reason and reflect as to who the relevant beneficiaries might be and as to what the impact of dividing ones estate in a certain manner might be yet simultaneously be unable to remember the content or approximate value of his/her estate.

The legal position: facilitated capacity
Determination of testamentary capacity in an older cognitively impaired individual requires the careful balancing of autonomy and protection. The court’s position in relation to striking such a balance is set out within the case of Easter v Griffith as outlined below.

“The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.” [4]

In an effort to promote autonomy, the NSW Law society outlines practical techniques that lawyers can use to accommodate sensory and cognitive changes in elderly testators [5]. Within these guidelines an approach known as “gradual counselling” is described, wherein an attorney may assist the client to understand and make choices through a process of clarification, reflection, and feedback.

The recommendations imply that it is acceptable for the legal test(s) of testamentary capacity to be met in a supported manner in situations where without such support the individual in question might be deemed to lack capacity. The extent to which a client’s cognitive difficulties can be circumnavigated via explanation and support, in an effort to assure that the legal tests of capacity are satisfied, is not addressed.

The concept of facilitated capacity is an important one for individuals suffering in the early-to-moderate stages of a dementia illness who wish to draw up a will or make changes to their existing will. The scientific (clinical neuropsychology) literature is replete with empirically validated methods and approaches to supporting cognitive function in early stage dementia. Such methods are routinely applied in an effort to support independent living and maximise the everyday functional capacity of elderly persons living with dementia and indeed many other forms of acquired brain injury.

The frequency of will challenges on grounds of incapacity will continue to rise in line with growing numbers of cognitively impaired elderly.

Contemporaneous documentation of a testator’s capacity is advised in cases where an aged testator has suffered a serious illness.

Neuropsychological (cognitive) evaluation serves the important and unique dual functions of:
1) objectively documenting even very subtle cognitive impairment within the wider context of formulating an opinion as to a client’s testamentary capacity, and
2) providing a detailed profile of a testator’s cognitive strengths and weaknesses from which an individually tailored approach to facilitating capacity may be formulated.

There is considerable scope to improve the efficacy with which elderly cognitively impaired individuals are assisted in upholding their capacity.

[1] An, E. D. “How and when to assess capacity.” (titled “Decision-making capacity & dementia – A guide for Health Care Professionals in NSW – Mini-legal kit Series 1.7”)
[2] Moye, Jennifer, Daniel C. Marson, and Barry Edelstein. “Assessment of capacity in an aging society.” American Psychologist 68(3), Apr 2013, 158-171. doi: 10.1037/a0032159
[3] Banks vs Goodfellow (1870)
[4] from an article by Myers J writing extra-judicially, Australian Bar Gazette,
1967 Vol2, p3 & an article by Therse Catanzariti, 13 Wentworth Chambers
[5] “When a Client’s Capacity is in Doubt: a practical guide for solicitors”, Law
Society of NSW

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