By Tracey Rynard, Associate
Many times I have been contacted by children or friends of elderly people in a panic. “The doctor says my (mother/father/favourite aunt/uncle/friend) is incapable. They don’t have a will, what do I do now????”
Since they have already called a lawyer, we can skip directly to Step Two, stop panicking.
What the doctor means when he says someone is incapable is not the same thing as being incapable to make a will. In fact, since capacity is decision, time and situation-specific, capacity itself is difficult to pin down. There is no such thing as being globally “capable”. There is no test to determine one’s general capacity.
There are as many different tests for capacity as you can derive a reason for testing for capacity, including: capacity to manage property, to make personal care decisions, to make a power of attorney for property or health care and to revoke one or the other, capacity to contract, to gift, to make a will, to revoke a will to create a trust, the capacity to marry, to separate and to divorce. Each test is different.
As an aside, the test of capacity to marry has a lower standard than the test for capacity to make a will but marriage revokes prior wills therefore a gentleman ( such cases seem to involve a disproportionately high percentage of men) potentially could find themselves married and intestate.
Some capacity tests are governed by legislation (the Substitute Decisions Act) and some are governed by the common law. Another issue with capacity is that it can vary. A client may be incapable of making a will on Tuesday morning but fully capable of doing so on Wednesday night.
A doctor or other health care practitioner may assess whether or not a patient is capable of consenting to health, however, the test for capacity to make a will should be completed by a lawyer trained in that area of law. If there is some doubt a certified capacity assessor may be consulted (another topic for another day).
The test which a doctor may use on to determine capacity is the Mini Mental State Examination, the fourth question of which is “can you spell WORLD backwards?” (the title hopefully makes sense to you now). Although the MMSE, as it is known, is a useful screening tool for detecting potential cognitive issues, the assessment of actual decisional capacity of the will client is the responsibility of the lawyer consulted.