Too ill to make a will

Death-bed wills: assessing testamentary capacity near the end of life.

Assessing testamentary capacity in the terminal phase of an illness or at a person’s deathbed is fraught with challenges for both doctors and lawyers. Numerous issues need to be considered when assessing capacity for a will.

These issues are exacerbated when such an assessment needs to be undertaken at the bedside of a dying patient.

The nature and severity of the illness, effects on cognition of the terminal illness, effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers, and a range of other issues confound and complicate the assessment of capacity.

What is the doctor’s role in properly assessing capacity in this context and how does this role intersect with the legal issues?

Doctors will play an increasing role in assessing testamentary capacity in this setting. 

The assessment of testamentary capacity is a growing area in the relationship between doctors and their patients.

Our ageing society and the increasing prevalence of dementing illness and debilitating disease has increased the need for, and the challenges in, assessing testamentary capacity. The situation is more complex and the need more pressing, for both doctors and lawyers, when a will needs to be prepared at the ‘deathbed’.

At such a time, the direct and indirect effects of terminal illness, the effects of medications, the likely urgency of the situation, emotional and psychological challenges, and family/carer issues and influences add to the complexity of assessing testamentary capacity.

Recognition of the impact that these complex issues have on capacity will increasingly result in doctors being involved in testamentary capacity assessments.

Consequently, doctors need to be aware of these issues and trained to assist their patients, while working closely with lawyers.

Testamentary capacity

The legal test for assessing testamentary capacity is set out in Banks v Goodfellow (1870) LR 5 QB 549 (‘Banks’) A testator must understand the nature and effect of making a will; be aware of the nature and extent of his/her estate and be aware of, and properly consider, the claims of potential beneficiaries who have a moral claim on the testator.

He/she should not be suffering from a ‘disorder of the mind’ which would affect any dispositions in their will.

Concerns exist regarding a modern testator’s ability to understand the nature and extent of his/her estate given the complexity of some estate planning mechanisms. The impact of illness, especially when superimposed on underlying co-morbidity, is more likely to affect higher level cognitive ability, particularly those higher level cognitive functions necessary to make a will. These concerns are heightened at the end of life.

A solicitor has a duty to prepare a will on receiving coherent instructions. It is the court’s decision whether capacity existed.

Legal and medical concepts of capacity differ. Lawyers may not fully understand the extent to which illness or medications can affect a person’s capacity and ability to give instruction.

The presence of a life-threatening illness is more likely to worsen cognitive function and capacity, particularly where underlying cognitive impairment or dementia exists.

Assessment of testamentary capacity on the basis of legal criteria, without reference to a medical assessment, is unlikely to fully consider objective neurobiological deficits that interfere with or preclude the ability to process specific tasks implicit in a particular will.

At the same time, doctors, while understanding the effects of illness on cognition, may not be aware of how these factors specifically impact an individual’s legal capacity.

As individuals near death, a range of factors are likely to affect cognitive functioning—from subtle, subclinical effects on cognition to frank delirium.

The range of factors include, for example, metabolic abnormalities, blood chemistry changes, haematological abnormalities—anaemia and hyperviscosity—changes in oxygenation, uraemia, hepatic encephalopathy, medication-related effects, pain, and emotional and psychological issues including depression.

This is particularly evident when these factors are superimposed on underlying brain disease and dementia.

The impact of these conditions on testamentary capacity is not well understood, and the means available to measure and assess cognitive function in this context are limited and often unhelpful.

Case study

An elderly patient lived alone, was unmarried, had no children or other family, and suffered from chronic obstructive pulmonary disease (COPD).

He was admitted to hospital with a severe exacerbation of COPD. He told his carers he wanted to make a will. Unbeknownst to the medical team, a solicitor was called.

The solicitor saw the patient for 30 minutes, asking questions about the patient’s situation before making a file note: ‘client understood questions—had capacity’. The patient died the next day.

Unknown to the solicitor, the patient had been dosed with significant and sedating doses of parenteral opioid medication in the days preceding death, including the day the Will instructions were given.

Treating medical staff were of the view that the patient was able to make treatment decisions. They were not consulted about testamentary capacity.

It later became a matter for the court to determine whether the patient’s ability to make treatment decisions was indicative of testamentary capacity—different matters with differing criteria.

This scenario is typical of the increasingly common and complex situations occurring in the care of aged and dying patients.

Undue influence and testamentary capacity are closely connected concepts, especially at the end of life when an individual may require assistance to manage their affairs.

To establish testamentary undue influence, it must be demonstrated that: a third party has the ability to influence the testator; influence was exerted; the exercise of such influence was gratuitous; and it directly brought about the transaction.

Testamentary undue influence is very difficult to successfully establish, and lack of capacity is often argued instead. The free choice of the testator must be subjugated.

At the end of life, an individual is more likely to be dependent on others for a range of physical, medical, psychological, emotional and financial needs.

That influence is a factor in decision-making is increasingly possible. Whether that influence is ‘undue’ is ultimately a decision for the court but medical professionals need to be alert to these issues.

Lawyers should communicate to doctors the specific requirements to assess testamentary capacity.

Merely repeating the Banks test is insufficient.

That an individual is able to respond to questions provides limited information regarding the clarity of their thinking, the veracity of what they indicate and their ability to recall and consider a range of issues in relation to the specific decision being made.

Instead, it is necessary to conduct a situation-specific evaluation of each of the Banks’ elements.

Lawyers should direct any assessment and doctors should ask for further information or guidance as to the format of a report if necessary.

The lawyer should also consider undue influence.

Doctors also need to be aware of the significance of a patient who, nearing the end of their life, wants to make a will.

They should comprehend the range of issues involved regarding an assessment of capacity, including the legal tests, potential conflicts and influencing issues, especially if their opinion has been sought about the patient’s medical and cognitive status.

In many cases, wills are not made until the realisation of impending mortality dawns. This means that Deathbed wills will become more common, as will doctors’ involvement in testamentary capacity assessments and exposure to issues of undue influence.

The intersection between lawyers’ and doctors’ understanding of the legal requirements necessary to establish capacity and undue influence requires an inter-disciplinary and collaborative approach exemplified by close and clear communication. An understanding of the contextual basis of the medico-legal interface is vital.

If you need help on any of the above call John  on 01207.654365

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