Testamentary capacity

Background: Requests for physician-assisted death (PAD) in patients with cognitive impairment are complex and require careful consideration. Of particular difficulty is determination of whether the request is voluntary and well considered. Results: Euthanasia and physician-assisted suicide (PAS) are both legal in The Netherlands, Luxemburg, Colombia, and Canada. Euthanasia is legal in Belgium, while PAS is legal in Switzerland and Oregon, Washington, Montana, Vermont, and California (USA)...

The extent to which legal determinations of capacity are genuinely separate from medical opinion on capacity presented to the court as evidence, is an open and important question. In order to explore this question, an empirical study was done on the use of medical and non-medical evidence to establish capacity in three different capacity contexts: personal/financial capacity, testamentary capacity and legal matters capacity. The study showed that the use of medical evidence to establish capacity was by far the heaviest in personal/financial capacity matters, often to the point of effective exclusion of other forms of evidence...

Allegations of lack of testamentary capacity or of undue influence are grounds for many disputed wills. Some people who make (or change an existing) will are resident in a nursing home. A substantial proportion of this population have cognitive or communication difficulties or are physically frail, and concerns regarding testamentary capacity or undue influence may be more likely to arise as a result. A questionnaire examining the experiences and views of staff regarding will-making by nursing home residents was posted to the Directors of Nursing of a random sample of 148 of the approximately 600 nursing homes in the Republic of Ireland and 81 responded...

Background: With an increasingly aged, frail population that holds a disproportionate amount of wealth, clinicians (especially those with expertise in older adults) may be asked with more frequency to offer a clinical opinion on testamentary capacity (TC), the mental capacity to make a will. Method: This paper reviews the legal criteria as well as the empirical research on assessment tools for determining testamentary capacity (TC). We also review the relevance of instruments used for the assessment of other decisional capacities in order to evince the potential value of developing a standardized assessment of TC for clinician experts...

INTRODUCTION: The increase in the aging population and the number of patients with dementia led to the research in older adults' capacity assessment over the last 3 decades. Many cases of contested wills occur due to lack of testamentary capacity (TC), especially in cases of dementia. AIM: Purpose of the present study was to overview the legal, medical, and neuropsychological aspects of TC as well as the instruments used for TC assessment. FINDINGS: The testator/testatrix with intact TC has realistic perception of his or her property value, lack of psychopathology affecting contact with reality, and intact intention of how and to whom he or she will dispose his or her assets...

In 2000, the Institute of Medicine stunned many professionals with their published report that noted the vast number of deaths that occur each year in hospitals across the United States which reach as many as 98,000. Therefore, it comes as no surprise that the healthcare arena faces litigious issues regularly, with some specialties budgets being significantly impacted by the cost of maintaining liability insurance. Legal Nurse Consultants and forensic physicians working in tandem but who work independently from treating clinicians can carry out forensic independent medical examinations (IME)...

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Clinical neuropsychologists accept more forensic referrals now and spend more time in forensic consulting than ever before. Recent surveys show weekly hours devoted to forensic consulting increased 97% in the past decade. During the same time period, the number of board certified neuropsychologists more than doubled. Under recently published Specialty Guidelines for Forensic Psychology, clinical neuropsychologists practice forensic psychology when applying scientific, technical, or specialized knowledge of neuropsychology to the law to assist in addressing legal, contractual, or administrative matters...

Discrimination against people with mental illness is rife across the globe. Among different types of discrimination is the policy in many countries where persons with mental illness are forbidden to inherit property, and they are not able to enter into a contract in a large number of countries. Using various databases, legislations dealing with law of contract, law of succession/inheritance, and law relating to testamentary capacity (wills) of all UN Member states (193 countries) were studied. With respect to federal countries, the laws of the most populous state as a representative state in the respective country were studied...

Clinicians routinely assess patients' mental capacity on a daily basis, but a more thorough assessment may be needed in complex cases. We aimed to identify the characteristics of inpatients in a general hospital, who were referred to a liaison psychiatry service for mental capacity assessment, reasons for the referrals, and the factors associated with their mental capacity. A 6-year retrospective study (2008-2013) was conducted using data collected routinely (e.g., age, gender, diagnosis, Thai Mental State Examination score, reasons for the referral, and the outcome of capacity assessment) on referrals for mental capacity assessment to a Consultation-liaison Psychiatry Unit at a university hospital in Thailand...

Assessing testamentary capacity in the terminal phase of an illness or at a person's deathbed is fraught with challenges for both doctors and lawyers. Numerous issues need to be considered when assessing capacity for a will. These issues are exacerbated when such an assessment needs to be undertaken at the bedside of a dying patient. The nature and severity of the illness, effects on cognition of the terminal illness, effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers, and a range of other issues confound and complicate the assessment of capacity...

The need for better and more accurate assessments of testamentary and decision-making capacity grows as Australian society ages and incidences of mentally disabling conditions increase. Capacity is a legal determination, but one on which medical opinion is increasingly being sought. The difficulties inherent within capacity assessments are exacerbated by the ad hoc approaches adopted by legal and medical professionals based on individual knowledge and skill, as well as the numerous assessment paradigms that exist...

Common law has a dictum that people must not benefit from their crimes. In years past, states have enacted slayer rules to prevent killers from inheriting from their victims. The specific criteria and applicability of slayer rules vary by jurisdiction. Recently, several states, including Washington, have expanded their slayer rules to disqualify persons from inheriting if they have been involved in abuse or financial exploitation of the deceased. Reviewed herein are the abuse disinheritance laws, the relationship of the laws to concepts of testamentary capacity and undue influence, and the relevance to forensic psychiatric evaluations...

The lucid interval is a long-held legal concept widely accepted in case law as a possible means of countering a challenge to testamentary and related capacities. In parallel, the clinical phenomenon of cognitive fluctuations has been considered a common element of several neurodegenerative disorders (dementias), including Alzheimer Disease, but is especially prevalent in vascular dementia and dementia with Lewy bodies. In this article, we review the objective evidence for cognitive fluctuations in dementia and the implications for the validity of the legal notion of the lucid interval cited in recent case law...

The extent to which dementia affects a person's testamentary capacity has been the subject of much litigation with some countries introducing legal tests to assess capacity. In light of substantial societal change in Albania in the last two decades and an epidemic of property litigation, Albanian legal practice is witnessing an increasing number of attempts to posthumously nullify wills. Plaintiffs are mainly relatives of the deceased testator who are unhappy with the quantity or quality of the property they have inherited...

OBJECTIVE: This paper reports on the experiences and perspectives of community members in relation to advance healthcare directives and enduring power of attorney, including the factors that encourage or discourage engagement in advance care planning (ACP). METHODS; A qualitative methodology was used involving 26 in-depth telephone interviews with community members (mean age 66 years). The aims of the interview question were to gain an understanding of: (1) motivations for engaging in ACP; (2) barriers that prevent people from engaging in ACP; and (3) suggestions for promoting ACP...

Australia lacks a satisfactory, national paradigm for assessing legal capacity in the context of testamentary, enduring power of attorney and advance care directive documents. Capacity assessments are currently conducted on an ad hoc basis by legal and/or medical professionals. The reliability of the assessment process is subject to the skill set and mutual understanding of the legal and/or medical professional conducting the assessment. There is a growth in the prevalence of diseases such as dementia. Such diseases impact upon cognition which increasingly necessitates collaboration between the legal and medical professions when assessing the effect of mentally disabling conditions upon legal capacity...

BACKGROUND: The leaving of a will prior to death by suicide is a relatively unexplored area. AIMS: To determine the frequency and details of will content in suicide notes. METHOD: Coroner records for 1565 deaths by suicide in Toronto (2003-2009) were reviewed for (a) will content and (b) the presence of depression, psychotic illness, dementia and intoxication prior to death. RESULTS: In total, 59 (20.7%) of 285 available suicide notes were found to have will content...

The assessment of legal capacity and testamentary capacity require thorough knowledge of the legal framework and the relevant case law. This paper explains the concept of the legal capacity to contract and the concept of testamentary capacity with respect to German civil law. The relevance of major mental disorders for the assessment of legal capacity and testamentary capacity is discussed.

Testamentary capacity refers to an individual's capability to write his or her own will. Psychiatrists are required occasionally to give expert opinions regarding the testamentary capacity of individuals with a medical history or suspected diagnosis of a mental illness. This may stem from the patient/lawyer/ family initiative to explore the current capacity to testate in anticipation of a possible challenge, or may be sought when testamentary capacity of a deceased has been challenged. In this article we examine the medico-legal construct of testamentary capacity of the schizophrenic patient, and discuss the various clinical situations specific to schizophrenic patients, highlighting their impact on the medical opinion regarding testamentary capacity through examining the rulings of Israel's Supreme Court in a specific case where the testamentary capacity of a mentally ill individual who was challenged postmortem, and provide a workable framework for the physician to evaluate the capacity of a schizophrenic patient to write a will...