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Education And Debate

Caring for Older People: Some legal aspects of mental capacity

BMJ 1996; 313 doi: (Published 20 July 1996) Cite this as: BMJ 1996;313:156
  1. Tom Arie, professora
  1. aDepartment of Health Care of the Elderly, Medical School, University of Nottingham, Nottingham NG7 2UH

    This article discusses some practical matters which arise when competence to make decisions is in question. Consent, testamentary capacity, powers of attorney, the Court of Protection, “living wills,” and research on people with dementia are briefly considered.

    Doctors and other health workers are often asked for an opinion on the capacity of an older person to make a decision or give a signature. These decisions can be difficult, for there are “grey areas” and there may often be uncertainty. The principles for assessing testamentary capacity will often be helpful; they clarify other similar questions of competence.

    Testamentary capacity

    Testamentary capacity requires that the subject should understand the nature of the act being undertaken—that a will is being made and what a will is. The person should have a reasonable awareness of the nature and extent of the assets to be distributed and should be aware of who might reasonably have a claim to be considered as beneficiaries of the will. Judgment must not be clouded by delusions or other significant mental illness.


    Though the person must know that he or she is making a will, and what a will is, it is not essential to know the exact value, say, of a house that will form part of the estate. However, not to know that there is a house would normally be a significant deficiency.

    A person is not bound to leave his or her money to anyone in particular, but a will would clearly be invalid if the person making it had forgotten that he or she was married, or the existence of some or all of the children.

    It is usually acceptable for judgment to be influenced by likes or dislikes, but not by psychotic ideas.


    When a doctor or other health worker is asked for an opinion on mental …

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