When you meet with a lawyer to discuss your estate planning needs, the lawyer may want to verify that you have the mental capacity to make decisions regarding your personal and legal affairs.  Why do lawyers question your sanity?  This doesn’t mean that the lawyer thinks that you may not be of sound mind. What it does mean is that the lawyer is trying to protect you and your beneficiaries from having your wishes challenged by someone else at some future time!

Why is a medical assessment necessary?

Even though it might seem obvious to anyone who meets you that you are completely capable of making all your own decisions, you need to be aware that someone may, at some time in the future, challenge the legal validity of a document that you have signed.

Many years after a document has been signed, a common argument is that at the time of the signing, you did not have the capacity to understand the meaning and effect of the document. These arguments are usually made at some time in the future when you are not able to defend yourself, such as where your mental health has since deteriorated or you have passed away.

Therefore, if you are signing estate planning documents such as a Will, an Enduring Power of Attorney, a Death Benefit Nomination form for a Superannuation policy, you may need to consider obtaining an independent medical assessment from a medical specialist or a general medical practitioner.

Does everyone need an assessment?

If you are young, fit and healthy, it’s unlikely that a report would be suggested, as it is equally unlikely that anyone would challenge the validity of a document.

However, where there are circumstances which could impact your mental capacity; such as old age, illness, mental health condition, significant accident causing injury, stress or undue influence from some other person; then the issue of mental capacity needs to be considered.

Making the extra effort to obtain an independent professional assessment as to your mental capacity may be the deciding factor at some future time in ensuring that your intentions are given full legal effect.

Examples of why reports are necessary !

Successful Court Challenge

Supreme Court proceedings were held recently when a lawyer testified that at the time that his client signed his Will, the client appeared to be healthy and was fully aware of how he wanted his assets to be distributed amongst his family members. The lawyer was satisfied that his client was completely capable of preparing a Will.

The people arguing against the lawyer had a report from a medical specialist which stated that the client was suffering from a medical condition which impacted his mental capacity, and was therefore unable to make proper decisions.  The court decided to reject the lawyer’s opinion and accept the medical evidence.  The consequence of the decision was that the Will was invalid and disregarded.

First impressions can be misleading

At a recent meeting with a person intending to make a Will, the client was talkative and engaging, and spoke with great clarity and detail on some topics of interest to him. He clearly demonstrated mental capacity during these discussions.

As the conversation progressed to a discussion about estate planning matters, and in particular to his family members who would be his beneficiaries, and to the particular assets which were currently owned by him, all mental clarity seemed to elude him and he was unable to provide any instructions that could be relied upon. It was interesting, particularly to a non-medical person, as to how a person appears and how they present themselves can quickly change.

The medical report

Some suggestions about medical assessments:

  1. The report should be on the letterhead of the medical practitioner, signed and dated,
  2. You need to be fully identified – with your date of birth, complete name (as noted on your identification documents) and your address,
  3. The date of your most recent consultation with the Doctor,
  4. The length of time that the Doctor has been providing you with medical advice / treatment,
  5. Details of any health conditions that you currently have which could impact on your mental health,
  6. Details of the extent to which these health conditions do impact upon your ability to think and make decisions,
  7. Details of why these health conditions do not impact upon your ability to think and make decisions,
  8. Details of any medications, and the impact of these medications on your mental health,
  9. Details of any other circumstances which could impact on your mental health and the ability to make decisions

Disclaimer: The above is to be considered as general education. This is not advice and it is not to be acted upon without advice from a qualified professional who understands your personal circumstances.

Copyright © 2017 Wockner Lawyers. All Rights Reserved. Contact Wockner Lawyers – [email protected]. This article may not be used without the prior written consent from the author. See below for more details…

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