Top 5 tips for assessing mental capacity to draft a will
Assessing Mental Capacity by Complete Estate Protection
Any will professional worth their salt should be able to robustly assess the mental capacity of their client before they create the will. Experts need to be able to prove beyond doubt that a client has the mental capacity to make their own decisions. It may be that their judgement needs to be held up in both legal courts and under medical assessment.
Making decisions on a persons mental capacity can be tricky. On the one hand they might be making perfectly rational judgements but on the other hand they might be doing something completely irrational that the expert is unaware of. In recent years, professional will writing practitioners have been using new techniques to assess mental capacity.
So, how do professional practitioners such as Complete Estate Protection assess their clients’ mental capacity in a way that ensures that we act in their best interests? Here are our top five tips for assessing mental capacity:
1. Take a rounded view of each client
It’s important to put any bias aside when dealing with a client. We occasionally use third party tools which give a clearer, impartial assessment and help us to form the basis of a judgement call.
2. Put objectivity first and foremost
In addition to third party tools, experts need to make judgements based on facts and real-time insights, not a ‘gut’ feeling. If there is proof to be used, this will help to fend off any future challenges.
3. Using technology
Simple processes such as recording the conversation can help to clarify points and ensure that nobody was misheard or misrepresented. There is also the potential to use electronic questionnaire style assessments, which make judgements based on answers to questions to ensure that all case law is being adhered to.
4. Integrate new technologies into the traditional process
New technologies aren’t there to replace human involvement or assessment, but rather to supplement it. Paper trails can be lost and so anything to digitally document the decision process is of help to support the overall case.
5. Use due diligence
Experts must be in a position to clearly demonstrate that their assessment was accurate and effective. This is best done by keeping proper (preferably digital) records that can be called up if necessary. Ensuring effective due diligence is done for each client’s assessment, and that every stone has been upturned ensures that the experts are fully satisfied in mental capacity.
Assessing mental capacity is important for any truly professional and diligent will expert. Failure to carefully assess can lead to challenges to the will at a later date and failure by the expert to prove that the relevant assessments were made on mental capacity can lead to challenges.
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