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Thursday, December 9, 2010

When is a doctor's opinion on capacity required?

Lawyers who work in Wills and Estates are trained to test their clients for testamentary capacity, or the ability to understand and make a will. But we're not medical doctors. Sometimes the legal and the medical overlap and we need input from doctors about our clients. In this post I'll briefly touch on some of the situations in which lawyers will need or want a doctor's opinion of a client's mental capacity.

1.  At the time a will is signed:

Individuals must have the ability to understand the nature and effect of a will. Lawyers are careful to document their opinion of this ability at the time a will is signed. Mental capacity can be impaired by dementia, medications or illness, so those will be considered if they are present.

Lawyers don't request a doctor's opinion every time a will is signed, nor should they. However, there are times when the lawyer suspects ahead of time that the will of an elderly person might be opposed by someone in the family, and should strategically strengthen the client's case by getting a doctor's letter. Wills are often attacked on the basis that the testator didn't know what he or she was doing and the parties then have to try to reconstruct whether the testator had capacity at the time or not.

If, after the testator's death, the will is backed up by a memo from the lawyer and a letter from the doctor, both made on the day the will was signed and both saying that the testator did know what he or she was doing, the will is in a much stronger position.

This is usually easy to arrange because the client simply makes an appointment with his or her family doctor.

I don't know of any set form for the doctor to use. I've always requested a letter that the doctor can word any way he or she wants to, as long as it addresses the issue of capacity on a certain day. Most doctors have not charged my clients for this service, though I imagine that practice varies quite a bit.

2.  At the time a springing Power of Attorney or Health Care Directive is activated:

A Continuing (Enduring) Power of Attorney and a Health Care Directive are usually made while the donor is mentally healthy and set aside until they are needed, in other words when the donor loses mental capacity. The document will state who has to sign a declaration to activate it. The usual provision is that one doctor or two doctors must sign declarations, which must then be attched to the document itself. Once those declarations are attached, the person named under the Power of Attorney or Health Care Directive can start working on behalf of the donor.

The doctor has to examine the donor to make this declaration, which can be a problem if the donor isn't co-operative. And let's face it, not everyone is happy about having their decision-making rights taken away from them at any given point.

The declarations are usually very brief forms - not more than a paragraph - that simply contain a statement that the donor is not able to deal with his or her finances or medical decisions.

3.  At the time someone is applying to be the guardian and/or trustee for an adult:

An adult is presumed to be able to look after his or her own affairs unless it's proven otherwise. Therefore, when someone is applying to be the guardian and/or trustee for an adult, that person has to bring the court evidence that the adult's capacity is diminished. The evidence is given in the form of a medical doctor's assessment. In some jurisdictions, the assessment can be done by others as well, such as registered nurses and occupational therapists.

Again, there can be a problem with co-operation. Unlike the person who voluntarily signed a Power of Attorney and knew that one day the person might have to take over, a person who will have a guardian or trustee hasn't signed anything. They haven't usually agreed to anything.

The forms needed for an assessment for guardianship or trusteeship are set out in the legislation that applies in each province and territory. In many cases, it's a very lengthy, detailed document. Doctors and other caregivers will usually charge a fee for providing the assessment.

4.  When the court orders a capacity assessment:

Sometimes there is litigation in which the person's capacity is essential to the court's decision. For example, I once had a client in his mid 90s who was hospitalized for a broken bone. A social worker became concerned about releasing the fellow because he lived on his own. The hospital refused to release him until a guardian was appointed and this made it to court. We took the position that because he is as competent as the next person, he should be free to leave the hospital and live alone. The court wanted the opinion of a doctor. We won, but in the meantime my client had to see a geriatric specialist for a full capacity assessment (which he passed with flying colours). The assessment cost about $2,600 at the time, and was comprised of a full report with data and analysis.

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