The Medical Profession Is Woefully Unprepared to Assess Mental Capacity

The test for mental capacity to prepare a will is a legal test and not a medical one, although the court will always be interested in the opinion of the medical practitioners, particularly those who were treating the deceased.

Accordingly, family doctors have been occasionally requested to provide opinions on typically an elderly patient’s ability to handle his or her financial or personal affairs, and to make a will.

I was flabbergasted the first time I cross-examined a family physician as to how much training he had undergone in medical school as to the evaluation of a person’s mental capacity, and he answered none.

Since that was 20 years ago, I have asked many doctors since then, and the answer never appears to be much more than about an hour, maybe.

The fact of there is no standardized tool for medical practitioners to which to refer in the assessment of mental capacity speaks volumes.

Most family doctors are simply too busy to make the proper inquiry and often fall into the trap of asking the caregiver accompanying  the patient as to the problem, treatment etc. rather than taking the time to ask  or explain to the patient him or herself.

Times are changing dramitically, and it is important for the medical profession to literally pull up its socks and learn more about the assessment and proper documentation of the early signs of dementia and to instigate the proper referral and/or treatment at an earlier time.

The population is not only aging, with a greatly increased amount of accumulated wealth, but has also grown multi-fold in its complexities as a result of divorce, remarriage, common-law relationships, same-sex relationships, deliberate single parents, multiracial/religious blending of families, etc., all of which is not only going to lead to an increase in estate litigation, but will also put greatly increased demands on the medical profession to provide opinions on their patients mental capacity.

From a legal perspective, a doctors understanding of mental capacity may very well be different from the legal test, and is important for the lawyer when asking the doctor for an opinion as to a patient’s mental capacity, to properly instruct the doctor as to the legal test.


More will be said on this topic in subsequent blogs.

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