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“Willie’s Law” – A change in law with regard to capacity?

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Julie Doncaster is a partner in the private client team at Harper Macleod

Julie Doncaster - Harper Macleod
Julie Doncaster - Harper Macleod

The question of whether a solicitor should determine a client’s mental capacity has arisen as the family of the late William Johnston call for a change in the law.

Mr Johnston, a Perth farmer who died in 2020, signed documents to make more than £425,000 available to his business partner, while terminally ill in hospital.

The family state that their father was unable to remember signing these documents less than two weeks after the event.

While the solicitor acting did not break any laws, he was found guilty of professional misconduct and issued with a fine.

The family are now campaigning for “Willie’s Law” to be introduced.

The change would require a medical professional to co-sign legal documents to show they are satisfied that a vulnerable person has sufficient mental capacity.

The Adults with Incapacity (Scotland) Act 2000 (“the Act”) provides the general principle that a person is presumed to have mental capacity.

The Act defines a person as incapable if they cannot act, make decisions, communicate decisions, understand decisions or retain the memory of decisions made.

Separately, the Law Society of Scotland guides that a solicitor should only act where they have instructions from their client and so long as they are satisfied the client has capacity to give said instructions.

When determining capacity, solicitors ought to assess the nature of the client’s instruction, their client’s understanding of the implications and provide any reasonable support which could assist.

The Law Society of Scotland guidance is also clear that where a solicitor is in doubt about a vulnerable client having the necessary level of capacity, the opinion of a medical professional or other relevant person such as a psychologist should be sought.

It is important to note that there is, at present, a distinction between medical and legal capacity.

Harper Macleod Elgin
Harper Macleod Elgin

For medical capacity, a doctor may deem a patient to lack medical capacity where they believe the patient will make a decision which will detrimentally affect their health.

It is also possible where patients suffer from a short-term infection, to be deemed to lack capacity due to the symptoms of the infection.

However, legal capacity is a much more fluid concept and the Act recognises that a person may lack capacity to make some decisions but not others.

For example, an individual could be regarded as having sufficient capacity to give instructions on a Will, as this is a well understood document, but insufficient capacity to understand the complex terms used in a company document.

Alternatively, a client may not remember every detail mentioned during a meeting with their solicitor, but this does not result in the client being deemed to lack capacity.

The important factor in such situations is consistency and reason.

A client should be able to provide coherent and reasoned instructions, whilst remaining consistent over a period of time.

Taking this into account, along with the solicitor’s knowledge of the client and the history of the matter, should allow the solicitor to determine whether the client has adequate capacity.

It is evident that the implementation of “Willie’s Law” would act as an additional safeguard for both the client and solicitor.

For the client, they could be confident that their testamentary wishes are not later challengeable, as there has been two regulated professionals present for the Will creation.

For the solicitor, any concerns over capacity could also be immediately clarified with an ‘expert opinion’.

However, given the resources available to an already stretched medical profession, would adding this new legal requirement contribute to further pressures?

Concerns also arise as to whether the requirement of a medical professional being present would result in delays to deathbed Wills being finalised.

Moreover, it would be reasonable for the client to expect an additional cost for a medical professional attending which may put some off from instructing a professionally drafted Will in the first place.

Dying without a Will in place is often the source of much additional stress, uncertainty, and cost so it is clear there is a lot to weigh up here.

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