Social work and end-of-life care

Social work is important in end-of-life care

Solicitors are not good at telling if people have the mental capacity to make a Will

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130311 solicitorsAn interesting article reports research into solicitors dealing with older people who may not have mental capacity – if their interviewing skills are poor, they’re likely not to recognise that their client may not have the capacity to make a Will.

Anyone who has worked in end-of-life care will have had the experience of a patient wanting to write or change their Will – in a hurry because they have suddenly become aware that they are going to die soon. Often this is because a social worker has suggested to them that they need to do this. And because professionals and their agencies working in palliative care are cautious about getting involved (so as not to be accused of seeking a legacy for themselves or their hospice), the solicitor is often left to do this on their own. If their interviewing skills are naff, they’re likely to miss mental incapacity.

My experience was that, when a Will was disputed afterwards, and the solicitor’s judgement questioned (they are legally responsible for ensuring that their client has the capacity to make a Will – this is called ‘testamentary capacity’) they often seem to have given little thought to whether their client had capacity and this research explains why. Mental and testamentary capacity is not always connected with the ‘social graces’ and many older people can keep up the veneer of coping, when they don’t have the judgement to make complicated decisions.

It seem that social workers referring a patient to a solicitor ought to take responsibility for flagging up if there are doubts about capacity.

Link to Testamentary capacity and solicitor negligence – Lexology.


Written by Malcolm Payne

11 March 2013 at 12:01 pm

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