Tag Archives: legal issues

The will to will

2 Nov

We had an interesting phone call last week from a patient wanting to know how to ensure his father’s will would be valid. The elderly father (not a patient of our clinic) wanted to update his will. The solicitor insisted he receive approval from his GP regarding his mental competency to draft the will and therefore sent him to his own GP. The GP performed a brief exam of his mental state and declared that he (the GP) would not be able to provide endorsement of mental competence, and that the patient would need to see a specialist.  The patient who rang us wanted to know if that was correct.

By coincidence, a couple of days later one of the leading medical defence companies put out an advisory note for GPs about what to do when asked to assess a patient for competence.  Essentially, the GP needs to be sure that the patient understands the implications of the will that they are drafting and that there be no evidence that they are under any pressure to fashion it or sign it by any particular family member.

To assess competency, the GP will usually perform a mini-mental status exam – a series of questions that demonstrate short term memory, long term memory and interpretation of instructions. The test is not particularly sensitive but is quick, simple to apply and a reasonable first effort to assess someone’s mental capacity.  Neither a pass nor “fail” (there isn’t actually a fail score – just an indication of degrees of impairment) is an absolute guarantee of competence or incompetence but is a reasonable indication.

The GP would also need to be certain that the patient preparing the will understands the implication of the document they are signing; that they have a good understanding of the assets they are willing and that they have thought about the implications for anyone else that may have a claim to the estate but is not included. Note that some patients with early dementia would still be able to satisfy those standards.

Assuming the above criteria are met, the GP would be able to confirm that the patient has competence to prepare their will. The onus on the GP is actually quite high, and many GPs are very nervous about being subsequently dragged into a court dispute over the will which may involve them being grilled on their experience, expertise and the exact details of the assessment they performed. Therefore if your GP does refer you (or a family member) to a neurologist, geriatrician, psychiatrist or neuropsychologist for further assessment, its not being done just to annoy you, but because the GP is simply not in a position to unequivocally sign the paperwork.

And of course one implication of the above is that you should prepare your will (or ensure your parents prepare theirs) BEFORE any question of impaired competency arises.