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We are often called upon to make wills or enduring powers of attorney for people in hospital, or for relatives who we are told or suspect have impaired mental capacity. This request always puts the lawyer in a difficult position because the capacity of that person to make a will or enduring power of attorney may be in question.

If you are over the age of 18 you can make a will and enduring power of attorney – provided you have capacity.

In general terms a person will have the necessary capacity if they:

In relation to a will:

  • know what a will is;
  • know of the amount and type of property they are disposing of;
  • understand the moral claims to which they should give effect when deciding to whom to leave their property; and
  • are not delusional or suffering from a mental illness at the time they sign their will.

In relation to an enduring power of attorney:

  • know the nature and effect of making an enduring power of attorney; and
  • sign the document freely and voluntarily

Who decides on capacity?

It is not the role of a lawyer to be an expert in assessing the capacity of their client.

However, a lawyer can be involved in carrying out a “legal” assessment of capacity.

If there is a question about someone’s mental capacity to make a will or an enduring power of attorney, then ideally an opinion, preferably in writing, should be obtained from that person’s treating doctor. The opinion should state that the person has the required testamentary capacity to make a will or the required capacity to make an enduring power of attorney.

When should the document be signed?

Where there is the likelihood that the document could be challenged on the basis of lack of capacity, it is important to obtain contemporaneous medical evidence from the will maker’s treating doctor or in some cases a geriatrician confirming the person in question has capacity. It is prudent for the doctor to conduct a medical examination to determine this and then provide a written report confirming their opinion.

Could the will or enduring power of attorney be challenged?

It is important to address the issue of capacity in some circumstances because a will or enduring power of attorney can be challenged on the grounds that the person did not have sufficient capacity when signing the document.  This arises most frequently where the person is ill, for example, in hospital on medication or elderly and suffering from dementia.

How Tetlow Legal can help

If you are worried because you know someone who wants to make a will or an enduring power of attorney and they may not have capacity or may be in the early stages of dementia and you are not sure, then it is prudent to encourage them to consult us as soon as possible.

If this is relevant to you or your family then please call Brian Tetlow or Emma Bragg on (02) 6140 3263 or email [email protected].