In London on 11 September 2014, over 80 practitioners, including both legal and medical professionals, came together to discuss the issue of testamentary capacity at the sold out event ‘Clarity on Capacity’, hosted by STEP’s UK Practice Committee in conjunction with the Mental Capacity Special Interest Group.
Following on from an article in the March 2014 STEP Journal which illustrated how recent court cases had provoked debate as to the suitability of the ‘golden rule’,[1] ‘Clarity on Capacity’ examined the duties of will writers to ensure that all reasonable steps have been taken to satisfy themselves that the testator has testamentary capacity. The event also explored how to reduce the risk of a will later being challenged on grounds of capacity.
The day comprised a mixture of presentation, panel debate and group work, beginning with an introduction to the capacity assessment tool being developed by the Mental Capacity Special Interest Group, which aims to assist will writers in ensuring practitioners deliver a robust assessment of capacity.
During the panel discussion, leading experts debated topics ranging from the interaction between the Mental Capacity Act (2005) and Banks v Goodfellow (1870)[2] to the practicality of securing timely medical advice in relation to capacity assessments.
Much of the day was devoted to a workshop format, with groups discussing questions related to best practice, collaboration with the medical profession, retention of evidence, appropriate charges and costs, and validity issues other than capacity.
Key themes to emerge from ‘Clarity on Capacity’:
Collaboration
Medical and will writing professions need to work together more effectively.
Suggestions from attendees as to how this could be achieved included joint qualifications/training from STEP and relevant medical bodies. Delegates also spoke about the need for a simple way to locate qualified medical practitioners in their local area, with charges for services clearly outlined.
Guidance
Practitioners would benefit from practical guidance in a number of areas to ensure best practice and consistency of approach.
For example, guidance to ensure comprehensive note taking. Another suggestion was guidance from the medical profession so that will preparers were more alert to the potential medical issues of clients. This chimes with the issues raised in a recent STEP webinar in which James Ward TEP and Dr Nori Graham of Red and Yellow Care discussed fluctuating capacity, particularly when the client experienced intermittent capacity without an overt change in demeanour.
Learning from others
Practitioners should communicate with each other to share experiences and best practice.
In addition, in developing its guidance, STEP could learn from collaborative actions taken by other sectors, for example, the Pre-Action Protocol for Disease and Illness Claims.[3]
Through sharing their experiences and insights, all participants contributed to delivering a successful ‘Clarity on Capacity’ event. This spirit of collaboration is essential to address the key themes that came out of the event and ensure the needs and wishes of clients are met.
Sean Smith, STEP Policy Manager
[1] http://www.step.org/exceptions-golden-rule
[2] (1869-70) LR 5 QB 549
[3] http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_dis
, including existing local practitioners. Perhaps we will now see similar debates emerge in other jurisdictions which currently have market access restrictions for professional advisors.
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