Assessing testamentary capacity of a patient – the role of the GP
Below we explain the role of the GP generally in assessing testamentary capacity for a patient/ testator who wishes to make a will or in giving an opinion on the capacity of a deceased patient who previously made a will.
Under Irish law, a person making the will or ‘testator’ must be 18 years or over or be married and must be of 1sound mind. Adults are presumed to have the ability to make a will unless proven otherwise.
Even though a person may not have capacity all the time, a will can be made in a lucid period if the person has capacity at the time it is made.
Any medical practitioner can assess capacity. A GP must respect the individual requirements of each patient and create a suitably calm and quiet environment to test capacity. When a GP assesses a patient’s mental capacity to make a will he/she should carefully document his/her findings in the patient’s medical records and the basis upon which the findings are made. If a GP feels it is not within his/her expertise to assess the capacity of a particular patient or the GP has doubts as to a patient’s capacity, the GP can recommend a referral for these purposes to an appropriate expert for example to a psychiatrist or geriatrician.
The GP may have a role to play at two points in time:
1. When a patient wishes to execute a will.
If the solicitor has any doubt as to the client’s testamentary capacity when the client requests to make a will, the solicitor may ask the GP to assess his/her patient and confirm in an affidavit the GP’s medical opinion that the patient has the requisite capacity to make the will.
At the outset the GP is advised to request from the solicitor:
- formal written instructions to ensure the GP is clear on the reason for the requirement for the mental capacity to be tested;
- proof in writing that the patient consents to the examination and disclosure of the requisite information to the solicitor;
- written information on the legal test in Ireland for capacity; and
- written confirmation that the GP’s fee will be paid.
A template letter is attached below.
1 Capacity is defined under the Assisted Decision Making (Capacity) Act 2015 as “decision–making capacity”. It is the ability to understand, at the time that decision is to be made, the nature and consequences of the decision to be made in the context of the available choices at that time.
The GP should:
- assess and document carefully his/her findings on capacity
- confirm the patient is acting freely without any undue influence from third parties
- confirm the patient understands he/she is making a will
- confirm the patient understands the nature of his/her assets in general terms,
- confirm the patient understands the consequences of his/her proposed dispositions and that the patient has given due consideration to persons expected to benefit.
Testamentary capacity is a specific legal test, which is different to assessing general mental capacity. It is the solicitor’s duty and not the GP’s duty to determine whether or not his client has testamentary capacity. Medical opinion from a GP or other medical practitioner may assist the solicitor in deciding whether his client has testamentary capacity but a medical opinion is not a substitute for a legal determination of testamentary capacity.
As part of the assessment, we suggest that a GP might consider asking the patient general questions about the nature and extent of his/her assets, rather than asking the patient’s solicitor for specific details of a patient’s assets. When responding to the solicitor, the GP can then relay what the patient had advised in terms of the nature and extent of his / her assets. If there is a discrepancy between what the GP recorded and the solicitor knew to be true, it then falls to the solicitor to resolve the issue with his / her client.
2. When a patient (testator) dies and an application is made to the Probate Office to prove the patient’s will.
The Probate Officei will presume the testator had testamentary capacity unless there are indicators which would raise a concern as to the testamentary capacity of the testator. Such indicators include a situation where the death certificate of testator indicates Alzheimer’s disease, dementia, or cognitive impairment either as the main cause of death or a co-existing condition. In such circumstances an affidavit of testamentary capacity may be required by the Probate Office. The solicitor acting for the personal representative of testator will usually write to the testator’s GP asking the GP to give an opinion on the testator’s testamentary capacity at the time of making the will. The Probate Office usually insist on affidavits sworn under oath of testamentary capacity from the GP as opposed to accepting a letter from the GP. The solicitor will usually send a GP a standard affidavit for signature under oath.
If the testator’s GP at the time of execution of the will is deceased and the GP who has taken over the practice of the deceased’s practitioner has no access to the medical notes of his predecessor, the GP cannot swear an affidavit on the testator’s capacity. In those circumstances the Probate Office may accept an affidavit from the solicitor who took the instructions and drew up the testator’s will.
If the testator’s GP at the time of execution of the will is retired or deceased and the current GP has access to the previous medical records he may be able to swear an affidavit to the effect that:
- The testator’s original doctor at the time of the testator making the will is deceased or retired, and
- The testator’s more recent GP has known and treated the testator for a number of years and while the patient was diagnosed with dementia in more recent years there
is nothing in the medical records to suggest the testator lacked capacity when making the will.
An affidavit is a written sworn statement of fact. A GP is advised to view the affidavit in the same way as if he/she was giving evidence in Court under oath and realise that he/she could in the future be questioned on the veracity of the affidavit. A GP must ensure that he/she is satisfied with wording of the affidavit and not feel intimidated or pressurised into signing an affidavit. A GP can ask the solicitor to amend the wording of any such affidavit before signing it. The GP should remember their duty is to always act in the best interests of the patient and not the family. Members are invited to contact Medisec for advice in relation to any affidavit prior to signing it.