Dr Kieran Kennedy, Lecturer in Clinical Practice, General Practitioner and Forensic Physician, National University of Ireland Galway and SAOLTA University Hospitals Group, explains the background to a longer article published in the March/April issue of the European Journal of Palliative Care.
Best practice in the holistic care of patients with life-limiting illness should include support in relation to social problems, (1) including practical aspects of financial and estate planning. (2) Many patients want to make a will before they die and can benefit psychologically from knowing that their wishes are likely to be carried out. However, a difficulty commonly arises in that there is often uncertainty surrounding the mental capacity of patients with significant advanced physical illness. If not adequately explored, such uncertainty could obstruct implementation of a patient’s expressed wishes. Thus, legal professionals, when tasked with drawing up or changing a will for their client, will occasionally seek a medical opinion in relation to the patient’s capacity to do so, also known as testamentary capacity.
There are many ways in which healthcare professionals can support patients in maximising their mental capacity to make or to change a will. However, these are not always immediately obvious to healthcare professionals whose focus is normally on expert medical management of end-of-life issues. Thus, we sought to describe a generic approach to such situations, which healthcare professionals can utilise to inform their own assessments of testamentary capacity.
It can be considered to be a clinical method for the assessment of testamentary capacity. It involves rigorous note-taking, appropriate medical management to maximise capacity, a clinical interview, attention to established legal frameworks, a mental state examination, cognitive screening tests and, ultimately, the possible need to stand over one’s assessment in court. Personal wealth has been generally increasing amongst citizens in the western world and, as a result, it is likely that healthcare professionals will become more and more involved in the assessment of testamentary capacity because dying patients will have more assets to dispose of. A robust assessment of testamentary capacity can greatly support a patient by ensuring their will is executed in line with their preferences.
While the lead author has previously published a detailed review of medical aspects of testamentary capacity, (3) this article in the European Journal of Palliative Care is written from the point of view of those working specifically in palliative care and is co-authored with expert clinical colleagues from palliative care medicine.
- European Association for Palliative Care. Definition of palliative care (English). Available here. Accessed on 13.09.2016.
- National Institute for Health and Care Excellence. Quality Standard [QS13]: End of life care for adults. Published November 2011. Last updated October, 2013. Available here. Accessed on 12/10/2016.
- Kennedy, KM (2012) ‘Testamentary capacity: A practical guide to assessment of ability to make a valid will’. Journal of forensic and legal medicine, 19:191-195.
Read the full article in the European Journal of Palliative Care
This post relates to a longer article, ‘Testamentary capacity and palliative care: helping patients implement estate planning’ by Kieran M Kennedy, Julien O’Riordan, Eileen Mannion and Sharon Beatty, published in the March/April 2017 edition of the European Journal of Palliative Care (vol. 24.2).
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Read more posts relating to articles published in the European Journal of Palliative Care on the EAPC Blog.