Capacity assessment and estate planning - the therapeutic importance of the individual

Abstract

Demand for legal capacity assessments is increasing, especially assessments of financial capacity for estate planning purposes such as wills and enduring powers of attorney. This article proposes that such assessments will be improved by taking greater account of the client experience, including individual and relational factors and processes, and considering the practice framework.A literature review was undertaken with a two-fold aim: firstly, to understand the fundamentally important perspective (inclusive of these experiences) of the evaluee; and, secondly, to identify potential improvements in the capacity assessment process with a view to informing best practice. No studies were identified that directly addressed the individual perspective in capacity assessments. Case studies and commentaries that indirectly discuss the individual perspective were therefore analysed to identify any potential issues and recommendations. This analysis showed that individual factors, such as the evaluee's functional and disease status, and relational factors, such as trust, should be considered by examiners. This review demonstrates that there is a significant gap in the literature examining the individual's perspective and experiences in capacity assessments, as well as, any impact this may have on the assessment process and outcomes. Further research into this vital perspective is needed so that the experiences of those undergoing assessments can help inform best practice and ensure that optimal processes are adopted when assessing the capacity necessary to make legally recognised decisions. This article examines the importance of the participant perspective and experiences in capacity assessments through the novel lens of therapeutic jurisprudence. It includes practice suggestions and provides the direction for this future research.