A Comprehensive Approach to Assessment of Testamentary Capacity

Abstract

The growing aging population raises important implications for legal and clinical systems, including testamentary capacity (TC) assessment. Yet, there are limited comprehensive and standardized assessment measures for TC readily available for clinical use. A review of current assessment methods and standardized approaches for TC assessment is provided. Although several guidelines regarding TC assessment have been proposed in prior literature, existing standardized approaches do not appear to meet full criteria for TC. A comprehensive approach to assessment of testamentary capacity is proposed.

Forensic psychiatric issues in intellectual disability

“…Having a guardian may not necessarily preclude testamentary capacity if burden of proof is provided for this capacity, as one may lack capacity in one domain but not another. To protect the will from challenge it is necessary to document that the will‐maker had testamentary capacity and knew and approved of the contents of the will without undue influence (Kenepp et al., 2021). The expert witness should justify the basis for testamentary capacity and include details of the evaluation.…”

Diverging medical and legal perceptions of the need for legal guardianship in people with dementia: A qualitative study

“…However, there is a major gap in knowledge regarding how physicians and legal professionals assess the relevance of symptoms for mental capacity and the need for guardianship [5, 6]. Previous studies have mainly focused on the medical perspective, exploring how memory deficits can affect a patient's ability to make legally effective decisions, the capacity to consent to treatment, testamentary capacity, and financial capacity [8–10]. Physicians have considered executive dysfunction, anosognosia, attention deficits, and decreased memory functions as red flags for impaired decision‐making in previous literature [11] but there is no comprehensive or systematic research data available on legal experts' perspectives regarding dementia‐related symptoms.…”