Few would dispute the fact that technology has become instrumental to helping modern day legal professionals work efficiently, whether it’s to automatically generate online documents, or gather client information via interactive and personalised forms.
For straightforward tasks like these, the role of technology is fairly evident. But how does it work for something more nuanced and human-driven, like assessing the mental capacity of a client?
The problem with manual capacity assessments
When it comes to assessing mental capacity, legal professionals have always faced the challenge of objectively identifying whether their client is sufficiently capable of making important life decisions. This is mostly due to the process being subjective, which means that conclusions are often left open to interpretation. It gets even more complicated when the person is capable of making certain decisions — such as who is included in their will — but not others, such as how to divide their estate up.
Manual assessments can also be inefficient, time consuming and prone to inconsistencies. Estate planners and advisors have their clients’ best interest at heart, but this can be difficult in cases where they need to spend more time on bureaucracy and paperwork than understanding the needs of their client.
With over 2 million people in the UK without the mental capacity to make an important decision, making manual assessments at scale is no longer efficient or cost effective.1 Non-medical professionals simply can’t be expected to make accurate, on the spot judgements regarding mental capacity in the same way clinically trained personnel can. Asking them to do so is not a viable option. Having a system in place by which legal professionals can make sure they are consistent and reliable in their assessments is critical, and will stand them in good stead should the SRA come knocking or if a decision is challenged by the client or their family member.
How can technology help?
The good news is that technology can help to revolutionise this process by standardising the mental capacity assessment, maintaining records of every action and response, and seamlessly integrating this information into other legal flows and processes.
With tools like Comentis’ Cognitive Assessment Engine (CAE), now available through Arken.legal’s Will drafting software, advisors simply need to complete a clinically based online questionnaire as part of any specific testamentary meeting. The Q&A has been created alongside recognised industry experts to help assess the mental capacity of the individual and give an instant recommendation to inform a decision. With this information, legal professionals can follow the legal precedence set by the Mental Capacity Act, which will help to remove the burden of making difficult and often subjective decisions. This approach also provides a clear audit trail that makes it easy for lawyers to defend in court.
By removing subjectivity from the mental capacity assessment, tools like these enable consistency across firms and offer a reliable way to understand the situation of the client, making it easier than ever for professionals to ensure that their client meets the legal test to make a will and is aware of the consequences of their decisions.
Accurately assessing clients’ mental capacity remains a top concern for regulators, legal professionals, and the public. Using technology to make these assessments not only helps the legal sector to increase efficiency and keep their clients’ interest at heart, but also ensures that professionals have a clear audit trail for each client should the SRA come knocking or a decision be challenged. Keeping assessments objective and consistent is the best way to ensure all clients receive fair and dignified treatment, as well as making sure that any decision can be justified when necessary to safeguard the reputation of the professionals themselves.
The ability to utilise digital capacity assessments is made simpler for legal professionals by being part of Arken.legal’s Will drafting software. The tech enables clients to easily build it into their best practice processes and provides an additional layer of protection for the client, as well as for their organisation as a whole.