Banks vs. Goodfellow might be more than a century and a half old, but it still stands tall as one of the defining principles when assessing testamentary capacity during the will writing process. For legal professionals, being able to robustly assess the mental capacity of a client before they engage is absolutely vital – experts need to be able to demonstrate beyond doubt that a client has the clarity and capacity to make their own decisions, both in a way that can satisfy the courts and hold up under clinical scrutiny.
However, the nuanced nature of mental capacity has made this process difficult for practitioners. A client might be perfectly capable of making one decision, and yet lack clarity over another. Needless to say, practitioners have brought numerous methodologies to the fore to help them demonstrate the mental capacity of their clients, so much so that there has been a call for enhanced due diligence and consistency across the industry when assessing at-risk individuals in recent years. After the events of the last year, it’s vital for practitioners to factor in the unique circumstances of each client when assessing their mental capacity to ensure any conclusions are fair, measurable and consistent. This demonstration of due diligence will be of particular importance if their engagement is challenged in court at a later date.
So, how can practitioners consistently and measurably assess their clients’ mental capacity in a way that protects their rights and preserves their dignity, whilst also giving themselves the legal protection they need to act in their interests? Here are our top five tips for assessing mental capacity:
1. Take a holistic view of each client
People are prone to bias, and that makes any assessment difficult. Using technology, practitioners can make their assessments a lot more consistent and reliable by providing an objective, holistic view. Comentis’ Cognitive Assessment Engine (CAE), for instance, has been designed with the help of mental health experts and psychologists specifically to help practitioners make objective judgements that remove the risk of human error and inconsistencies between departments and firms. The CAE software can be seamlessly incorporated into a practitioner’s legacy processes and can be tailored to assess specific engagements, from writing wills to giving lasting power of attorney.
2. Put objectivity first and foremost
As outlined above, technology is a practitioner’s most valuable asset when it comes to removing subjectivity and human error from the assessment process, creating a de facto industry standard when it comes to assessing mental capacity. Advisers need to be able to base their assessments on facts and real-time insights in order to make accurate determinations and fend off any potential challenges.
3. Find new efficiencies
Firms shouldn’t need to jump through bureaucratic hoops and navigate inefficient paper trails in order to prove they are adhering to caselaw. While it might seem like a necessary, cumbersome process, there are alternative ways to tackle the process that are not only more efficient, but also more in-depth and reliable. This means making the most of tech on offer in the market. Tech platforms like the CAE make the process itself more efficient by helping practitioners with a set of questions that reduce subjectivity and provide an automatic recommendation on the client’s mental capacity. Not only that, but any decisions made about a client’s reduced mental capacity are automatically recorded, ensuring a reliable log is kept on the system should the SRA come knocking.
4. Integrate new tools with legacy processes
Investing in new tech isn’t a zero-sum game. It’s possible to embrace cognitive assessment platforms like the CAE without reinventing the wheel or having to rebuild internal processes from the ground up. These technologies aren’t there to replace human involvement or oversight, but rather to supplement it and make roles more manageable and less vulnerable to error.
5. Always think ‘due diligence’
Firms must be in a position to clearly demonstrate their ‘working out’ should one of their decisions be called into question. Having a tech-based, objective, fool-proof system in place for making consistent assessments across all clients is the best possible way for a firm to protect itself should a challenge be made. Not only that, but the more due diligence a firm can do for each client’s assessment, the more likely that it will hold up in court or avoid any later accusations of negligence.
The nature of the capacity assessment landscape isn’t something practitioners should fear. After all, it’s there to enable them to carry out their work effectively and prioritise their clients’ interests and wellbeing. However, staying ahead of the curve when it comes to justifying decisions will be made much easier with the right processes and technology in place.