Turn Back The Hands of Time
Heather Lally, Associate Solicitor and Trust and Estate Practitioner at Bowcock Cuerden LLP, considers the importance of assessing capacity when advising elderly clients.
We are often asked to advise high net worth individuals in estate planning matters. Individuals who at one time were very busy professionals, running businesses. Such clients often remain sharp and acute when dealing with facts and figures in later life, as they had been used to dealing with difficult business decisions and fought for the best deals for their business and family. With age, both the health of the body and mind can start to deteriorate. However, when faced with such clearly strong individuals, sadly sometimes the closest relatives and friends are the last to see or admit that there might be issues regarding a deterioration of mental capacity.
The client themselves may be aware of such a deterioration but often refer to it as “old age”, they may also be very good at hiding the deterioration from close relatives, friends and to some extent even the professionals that advise them.
Being a Private Client Solicitor, advising on estate planning, preparation of Wills and Powers of Attorney, involves assessing each client’s capacity to take decisions relating to what it is they wish to do.
A first impression may be formed that there are no issues regarding capacity, gathered from the way the person presents themselves, communicates and the information they provide.
Nevertheless, often warning signs will appear after that first impression has been formed. The person may show signs of failing memory, they may find it difficult to focus on the questions asked and to “stay on track”. They may get confused as to which adviser is there to see them, particularly if they have a number of professionals assisting them for different matters.
The value added to client service is from experienced professionals who take time to have a number of conversations and/or meetings with the client. The professional can also look to gather as much information as possible from friends and family members as to the person’s nature, along with looking at past documents prepared and wishes to fully understand the client.
A 360 approach can really assist, alongside the legal tests for assessing capacity for different matters. If in doubt, an instruction to a suitably qualified Doctor or psychiatrist and in some cases an independent social worker to carry out an assessment of capacity, still remains the best support to the decision making process as to whether an individual has mental capacity to instruct a Solicitor in relation to the preparation of Wills and Powers of Attorney.
There are various charities which can offer advice, guidance and support regarding mental capacity in later life, such as Dementia Friends which is an initiative of Alzheimer’s Society.
Bowcock Cuerden LLP has an experienced team of Solicitors assisting in the preparation of Wills, Estate planning, Estate administration, Trusts, Lasting Powers of Attorney and Court of Protection matters, including members of the Society of Trust and Estate Practitioners (STEP), Solicitors for the Elderly (SFE) and the Agricultural Law Association (ALA).
For more information on the issues addressed in this article, please contact Heather Lally on 01270 611106 or email firstname.lastname@example.org
This article is not intended to be comprehensive or to provide specific legal advice. It should not be relied upon in the absence of specific advice given in relation to particular circumstances.