Mental Capacity concerns being in position of sound mind and being able to make your own decisions. It is ultimately governed by the Mental Capacity Act 2005.

There are a number of things that can impair your mental capacity and cause you to lose mental capacity. Examples could be:

  • A stroke
  • Dementia
  • A brain injury
  • A mental health condition

In order to create a valid Will or lasting power of attorney through a Will Writer, Solicitor, or Estate Planner you must have mental capacity. Without Capacity an application would have to be made to the courts for a Statutory Will.

The Mental Capacity Act doesn’t make direct reference to the creation of a Will, but the courts do place weight on this Act when coming to a decision as well as using the precedents set in case law.

A key consideration for a professional drafting your Will is whether you have sufficient capacity to meet the principles laid out in the case of Banks v Goodfellow. This case forms the foundations for mental capacity assessment when a Will Writer meets a client.

In short the testator must be able to demonstrate that they:

  1. understand the nature of his act (of making a will) and its effects;
  2. understand the extent of the property in his estate; and
  3. be able to comprehend and appreciate the claims to which he ought to give effect; and
  4. that no disorder of his mind “shall poison his affections, pervert his sense of right, or his will in disposing of his property”.

If a Will Writer, having used the principles in Banks v Goodfellow, is ever in doubt about the capacity of a client, they will normally consult a professional such as the client’s doctor or a mental capacity assessor. This is also known as the ‘golden rule’.

 

 

  1. Mental capacity – who has the final say if someone has mental capacity or not?

    1. info@willwriters.com

      If the will writer is satisfied that the client has capacity, then they may proceed with their instructions. To satisfy themselves of their client’s capacity they may ask a series of questions and make general conversation in order to gain an idea of whether they have capacity.

      If the will writer is not satisfied that a client has the necessary capacity then they should seek the opinion of a medical professional before going ahead with any instruction, so at that point it would be the medical professional who has the final say on whether a client has mental capacity or not.

      If a Will Writer, having used the principles in Banks v Goodfellow, is ever in doubt about the capacity of a client, they will normally consult a professional such as the client’s doctor or a mental capacity assessor. This is also known as the ‘golden rule’.

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