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When Capacity is in Question

As our population ages and more people find themselves living with mental capacity issues, it’s important to put safeguards in place that will protect your client, their family, yourself and your firm’s reputation.

In 2024 around 1 million people in the UK had Dementia and this number is set to grow considerably. We hope this resource will provide support to our clients who are navigating the rise in cases and advising clients they worry may have mental capacity issues.

Scroll down to read on or watch the recording available on the right.

https://vimeo.com/1053392604/1d310d5917?ts=0&share=copy

When Capacity is in Question - with Dementia UK and Rothley Law (https://vimeo.com/1053392604/1d310d5917?ts=0&share=copy)

Thanks to Our Contributors

Heledd Wyn

Partner and Solicitor at Rothley Law

Rachel Watson

Admiral Nurse, Dementia UK

Pippa Shepherd

Head of Customer Engagement

How to Recognise the Signs and Symptoms of Dementia?

Dementia presents itself differently for everyone, but common symptoms include:

Memory lapses beyond normal forgetfulness
Difficulty concentrating, finding words or following conversations
Struggles in decision-making and problem-solving
Repeating oneself frequently
Getting lost in unfamiliar and familiar places
Personality and behavioural changes
Difficulty understanding other people’s emotions, humour, or sarcasm

The Misconceptions About Dementia

There are several myths about Dementia, which were kindly corrected by Rachel from Dementia UK. Here’s some of the common misunderstandings she’s come across:

1. 1. Dementia is NOT just memory loss. Whilst memory loss is common it can also just be part of getting older, look out for other symptoms too. For example, Dementia also affects problem-solving, language and decision-making. When talking with someone who you are worried has mental capacity issues like Dementia, try to keep your language simple and it can sometimes help to use visual aids to explain what you mean if you can.
  2. Only the elderly get Dementia. In actual fact, only 25% of people over the age of 80 get Dementia, so it’s not just the elderly that get it.
  3. All confusion is a result of Dementia. People, especially the elderly, can suffer from temporary confusion that can arise from conditions like delirium from common infections. It’s not always a mental capacity issue that is causing the problem.

Raising Mental Capacity Concerns with Sensitivity

Discussing mental capacity is a delicate subject, the last thing we want to do is offend or alarm anyone. In some cases, clients can become defensive so be prepared for that.

Effective strategies to help assuage concerns could include:

Gently enquiring as to their recent health and if they have had any issues with memory. Mention you’re simply following best-practice.
Using open-ended questions to explore their understanding of their estate, their decisions and finances.
Determining whether they are on the radar of healthcare or social services or if they are getting any additional support. If there are concerns about their health from family members, try to determine the severity. For example, what does their forgetfulness look like, is it of significant concern or is it manageable? Are they arranging any additional support?
Assessing inconsistencies in their responses, such as underestimating the detail of their financial situation. Not only to find out that they know what an estate is, but do they know how much theirs is worth?

Tools and Guidelines for Evaluating
Mental Capacity

There are several tools and legal guidelines available to assess a client’s decision-making ability:

The Mental Capacity Act (2005): Establishes principles for determining whether an individual has capacity.
The Banks v Goodfellow Test: A legal benchmark for assessing testamentary capacity.
Office of the Public Guardian Guidance: Provides further clarification on decision-making standards.
Digital Capacity Assessments: Provides an assessment within Arken Professional, your document drafting software, which flags potential concerns in a report.

Charities like Dementia UK are on hand to help your clients and their families navigate how to cope with the condition. Their Admiral Nurses are available to advise via their helpline if you have any questions about providing your client with the right resources.

There are professional assessments by medical or psychological experts available too, which may be necessary in complex cases. GPs can take a long time to turn capacity assessments around and some may no longer provide them at all, so turning to private organisations may be necessary.

illustration of a man and woman working at a table

Can a Client with Dementia Sign a Will or Lasting Power of Attorney During a Window of Clarity?

Not everyone with Dementia loses capacity immediately, and their ability to make decisions can fluctuate. For example, individuals with Lewy Body Dementia may experience periods of lucidity. In some cases, it may be possible to schedule meetings or assessments during these times, giving the client the best opportunity to make decisions for themselves.

It’s also essential to step back and assess whether it is a genuine window of clarity. Do you have a capacity assessment to support it? Keeping evidence that the individual had capacity before they lost it during their time with you is beneficial.

Ultimately, you need to be confident that if the decision is later scrutinised or litigated, you have strong grounds to prove the validity of that window of clarity. If you can establish that it was a genuine and well-documented period of capacity, then proceeding should be acceptable.

Identifying and Addressing Undue Influence

Getting the right care in place for individuals living with mental capacity issues can put a financial strain on families. Stress can make people do things they normally wouldn’t and sadly, when people become vulnerable, they also become easy to take advantage of.

Experience often sharpens the ability to spot red flags – such as a dominating relative controlling the conversation or a reluctance to allow the client to speak independently.

The best practices discussed during the webinar for identifying undue influence include:

Gathering background information from both the client and their family to understand dynamics.
Holding private meetings with the client to ensure their wishes are freely expressed.
Observing non-verbal cues, such as nervous behaviour, avoidance, or physical signs of coercion.
Being firm about ethical boundaries, ensuring the client makes decisions without external pressure and ensuring the family respect your process and duties.

If coercion is suspected decisive action should be taken, including halting proceedings and raising concerns with safeguarding authorities such as The Court of Protection – who can make decisions on behalf of incapacitated people in their best interests.

Sometimes it’s good to go back to basics and consider what your duty is and what you are allowed to do under your own regulatory powers. This can help narrow down on the options available to you.

Encouraging Reluctant Clients to Undergo a Capacity Assessment

Sometimes it’s strongly advisable that your client takes a capacity assessment. Particularly if significant changes are made when compared to previous arrangements. For example, if a Testator suddenly disinherits a beneficiary, the likelihood of a legal challenge significantly increases. By proactively addressing capacity concerns, you help to ensure the enforceability of the client’s wishes and reduce the risk of future disputes.

Encouraging Clients to Undergo an Assessment

Explain the Legal and Practical Implications
Clients may resist a capacity assessment due to fear, stigma, or a misunderstanding of its purpose. It is crucial to communicate that the assessment is not intended to question their autonomy but rather to reinforce the integrity of their estate plan. A well-documented capacity assessment provides essential evidence that the testator was of sound mind at the time of making their Will, which can be instrumental in preventing costly litigation.
Frame the Assessment as a Protective Measure
Even when a client appears to have full capacity, a formal assessment adds an extra layer of legal security. By emphasising that the assessment serves as a protective measure—both for the testator’s legacy and for the beneficiaries—it becomes easier to gain their cooperation. Clients should be made aware that should their Will face a legal challenge, they will not be present to defend their decisions. A capacity assessment acts as an independent verification of their intentions.

When a Client Refuses an Assessment

Despite best efforts, some clients may refuse a capacity assessment. In such cases, you must evaluate whether you can, in good conscience, proceed with drafting the Will. If there is genuine doubt regarding the client’s capacity, the appropriate course of action is to refuse to take instructions. Continuing to act without sufficient confidence in the client’s capacity could compromise professional ethics and expose the Will to future litigation.

About Arken

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Arken’s product suite digitises client interactions, supports online lead generation, and enhances operational efficiency. Trusted by over 7,000 professionals, Arken’s software has been used to draft more than 7 million Wills to date.

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