Testamentary Mental Capacity Assessment - Fact Sheet for clients
This fact sheet is aimed at you as it is felt an independent mental capacity assessment is important to help demonstrate your, or your loved one’s, ability to make a specific legal, health or financial decision.
What is Mental Capacity?
• This is merely another way of saying ‘ A persons ability to make a decision’.
• It is determined by whether a person has an impairment or disturbance of the mind or brain that directly affects their ability to;
– Understand relevant information
– Retain relevant information
– Weigh up relevant information
– Communicate their thoughts, wishes and feeling about the decision in question.
• Mental capacity is ‘item specific’. For example, what a person needs to understand to decide where to live is very different to what would be needed to make a Will.
• It is also ‘time specific’ – this is because someone’s mental capacity can fluctuate; decline or improve depending on their mental processing at that time.
What is a Testamentary Mental Capacity Assessment?
Testamentary Mental Capacity assessments are used to ascertain if you or your loved one has the capacity to make a Will.
What do Testamentary Capacity Assessments include?
Our testamentary capacity assessments include one visit to the client’s home, an assessment, a written report that can be kept alongside the Will, travel and reading time. Our assessors can also act as one witness to the Will (at no additional cost). This can only be actioned if the Will is present and capacity is confirmed.
What happens in a Testamentary Mental Capacity Assessment?
The first thing to emphasise is that this assessment is not about trying to ‘catch you out’ – it is about showing the person at their best, identifying strengths and weaknesses and any support the person requires in relation to being able to make the identified decision.
One of our mental capacity assessors will meet with you or your loved one on a one to one basis, at a suitable time and place and comprises of an in-depth conversation. The assessor will use the information provided before the assessment to engage in open questions surrounding the Will, the estate and family and friends. Our assessor will take time to put you or your loved one at ease and explain exactly what they are looking for.
If there is anything you don’t understand let the assessor know so they can explain it to you in a way that makes sense to you.
What information do you need from me?
We will request information such as a family tree, the size of your or your loved one’s estate and whether you/they have any dependants. During the mental capacity assessment this information is used to verify what you/they say. The assessor then uses the information to develop questions asked and ensures that all decisions being discussed are covered in sufficient depth.
If you/they have a copy of the Will it is helpful to provide us with it prior to the assessment or have it present on the day. If a Will is present, the assessor will also go through its contents. Alternatively, if a Will is not present they will similarly discuss your/your loved one’s wishes for the content of the Will.
Why is a Testamentary Capacity Assessment necessary?
If there is a question over your or your loved one’s capacity, or there could be seen to be doubt, then a capacity assessment can help ensure that the person creating or changing their Will is doing so with understanding and without duress.
This assessment can help ensure you or your loved one continues to have a voice, with the opportunity to express your wishes in a safe environment with no outside influence.
Who will be there during the assessment?
Whilst our preference is that we see you or your loved one on your own, other people can be there to introduce you and help you settle before the assessment. Others can also stay in close proximity, say another room, so you or your loved one can call for them if you/they feel you need their support.
How long will the assessment take?
In general, you should allow for an 60 – 90 minutes for the assessment of one decision.
Can I instruct you myself or do I need a solicitor?
You will need a solicitor to instruct us to conduct a Mental Capacity Assessment. The solicitor will complete a referral form that explains what information we need. It varies depending on the questions being asked. We use this information to help prepare questions and validate answers provided during the assessment.
It also helps us to get to know the client being assessed and identify anything extra we can do to assist you or your loved one.