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. 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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