There was a time when the issue of whether or not someone had mental capacity related only to persons completing a Will. With our burgeoning mature population, private client lawyers will in the future be faced with capacity issues more and more in a number of different areas.

Capacity may become an issue for those who have appointed or who are appointing Attorney(s), in determining whether such delegation of power comes into effect or, whether it might be necessary to seek the instruction of the person giving the power.   Also, at the time of appointing Attorney(s) and other documents such as an occupation right agreements for a unit in a retirement village, a solicitor is required to certify that the person appears to fully understand the contents of the documents being signed.

In short, the very fact that clients are living longer opens up a wider realm of possibilities for challenging the documents entered into on the basis of lack of capacity.

In an endeavour to counter such possibilities clients need to:

• Regularly update Wills, Enduring Powers of Attorney, Letter of Wishes for Trusts and Advance Directives. We suggest a review at not less than 5 year intervals for all these documents. After all, regardless of capacity, circumstances may well have changed necessitating a general need to update.
• We also recommend, where appropriate, that clients provide full written details of their assets when making a Will or upon review as well as written reasons for making what may be felt to be unusual bequests or provisions.  There is less likely to be a challenge to the testator’s mental capacity if the testator knew the extent of their assets and there were cogent reasons given for anything unusual in their Will.

By taking these steps, apart from updating where circumstances dictate, your solicitor will have evidence on file to combat any claims of lack of capacity at any given time.

For further information on this topic, please contact Tony Fortune, Cathy Fisher or Katherine McCarthy.