From time to time in taking instruction, you will meet a client for whom testamentary capacity is uncertain. In many cases, you will walk away from the client rather than risk exposing yourselves to any future criticism or scrutiny in court.
Tim Farmer of TSF Consultants, the UK’s leading provider of independent mental capacity assessments to the legal profession, explains the reasons why GPs are increasingly reluctant to do this kind of work and what you can do to further help your clients in this situation.
A referral to a professional will establish testamentary capacity and enable you to proceed and work with confidence or, at least, establish for the family that it is not possible to do so.
General Practitioners, not experts
Increasingly, we hear reports from legal professionals that GP’s are either declining to conduct mental capacity assessments or that the outcome of such assessments is questionable.
Yet in reality, is this really surprising? The term GP means ’general practitioner’ and arguably, as such they are expected to have a vast knowledge of many things but an expert knowledge of very little.
You would expect most GP’s to be able to identify cancer or depression and even have an understanding of their treatment, but arguably their depth of knowledge need only be sufficient to identify the need and then contact the specialist to complete the treatment. So it is with Mental Capacity.
Most, if not all, GP’s will at some point had some training around the mental capacity act and the two-stage test but for some that will have been several years ago and not revisited again. Is it right therefore to expect them to be able to conduct robust and comprehensive assessments or should we be looking elsewhere?
Court of Protection
Undoubtedly, there are some GP’s that are very proficient in the application of the Mental Capacity Act (2005) in relation to assessments for Court of Protection applications, certificates for Lasting Powers of Attorney or assessments of testamentary capacity. However, for many this is beyond their comfort zone and level of knowledge.
How well do GP’s know their patients?
There is the argument that the patient knows the GP and so would feel more comfortable with them. I wonder if this is more our expectations than the reality. Gone are the days when GP’s had time to build a lasting, therapeutic relationship over the space of a half hour assessment. Nowadays, the average GP has 5-10 minutes to see a patient and many people don’t see the same GP again and again; rather they take whichever slot is free with any doctor.
Furthermore, anecdotal evidence seems to indicate that the average turn-around time for mental capacity assessments from the GP is about 4 weeks – which considering their workload is understandable. Yet, clients or their families are often trying desperately to take action very close to the last opportunity to do so, presenting a certain sense of urgency. When there are experts, such as TSF Consultants, who can provide an average 5 working day turn around, one would question why wait for the GP?
The Future for Mental Capacity assessments
I honestly believe the age of the GP being the first port of call for the legal profession is coming to an end. The Court of Protection is now allowing other professions to complete CoP3 forms and I genuinely believe that this, rather than a reliance on the GP, is the future for MCA assessments within the legal setting.
Tim Farmer is a specialist in the assessment of mental capacity and founder of TSF Consultants, the UK’s largest provider of mental capacity assessments to the legal profession. He may be reached on firstname.lastname@example.org.