This is a fictional dilemma compiled from the MDU's files.
The scene
An MDU GP member had been asked to visit a local nursing home where a long-term patient of the practice was now residing after being discharged from hospital.
The patient, who was previously unknown to the member, had been allocated the visit in the absence of their usual GP. The visit request had come from the new husband of the patient, who was asking that a doctor witness his wife's signature because she was changing her will in his and his family's favour.
The member reviewed the notes before calling and noted the discharge letter from the hospital, which included mention of the marriage having taken place during her 4-week admission. The patient, who had previously been widowed, had a documented history of heart failure and was admitted on this occasion with a profound anaemia - subsequently found to be related to an inoperable gastric tumour - and she had been discharged as a palliative care patient to the home.
The member had never encountered a request like this before, and called the MDU's helpline to understand what this should involve and if, given the circumstances, it was something they could reasonably do.
Our advice
The member had in essence been asked to assess testamentary capacity; if a doctor witnesses the signing of a will, they may be assumed to have made an assessment that the patient is of 'sound mind' to sign it.
The MDU adviser explained that this is a specific aspect of capacity that would require familiarity and expertise. Any doctor who provides an opinion about whether someone has capacity to write a will can face questions in writing or in court and may be asked about their experience and knowledge of the particular legal test involved.
Every doctor must work within their competence. Therefore, such an assessment should not be undertaken lightly.
To undertake such an assessment, it would be necessary to understand the principles set out in the landmark legal case of Banks v Goodfellow, which concluded that the person making the will has capacity to do so only if they understand the following points:
- the nature of and consequences of making a will
- the extent of their estate
- that there may be claims arising from parties who might expect to be included in the will.
As well as this, the person making the will should not have a mental illness that influences them to make bequests they would not otherwise have made.
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A doctor undertaking an assessment of testamentary capacity would need to be confident of their own competence to make the assessment, and to have enough information to assess the factors set out in Banks v Goodfellow.
Information (about the legal test, and about the extent of the estate and possible claims) will usually be provided in a letter from the person's solicitor. This will usually include information about previous wills.
If the doctor considers that they have the relevant competence, and enough information, the doctor can then assess whether the patient understands each of the factors from Banks v Goodfellow. These assessments take time and must be documented carefully.
Any doctor who provides an opinion about whether someone has capacity to write a will can face questions in writing or in court.
The MDU's adviser confirmed with the member that as far as they were aware, the request had come directly from the new husband and related to an online will service, and that they were unaware of any specific legal involvement.
In the absence of this, the member was advised that assessing the patient's capacity to make a will may be unwise. The patient might then decide to seek a solicitor's advice.
The outcome
The member visited as scheduled, but explained to the patient and her husband that they would be unable to perform the assessment as requested.
Another request was made a week later via a solicitor, and while the member wanted to be helpful, they concluded it was outside of their area of expertise and suggested a specialist referral and assessment.