The Law Society has joined with the British Banking Association, the Building Societies Association, and the OPG among others in producing two guidance booklets for those carers and family members trying to deal with a relative’s bank accounts when the relative is unable to do so for one reason or another. One short booklet is aimed at the carer, and is definitely worth passing on to clients; however for my money the really important booklet is the one giving guidance to banks and building societies about how to deal with third party requests in this context. From a practical point of view this area of law and finance has been chaotic, with different financial institutions requiring different items of evidence and proof, some of them completely unreasonable. I have not had an opportunity to look through the booklet in detail yet, so I can’t say whether the guidance given errs on the reasonable or unreasonable side, but the important thing for the practitioner is that there is (finally!) a code of guidance to which a bank or building society employee can be directed and asked to follow. At least we are getting to a point where both sides know what is required of them, and that’s a start. You can find the Law Society posting on the booklets here, and there are links to the booklets themselves at the bottom of the page.
There have been a few articles this week about a study by Dr Claire Royston and Robert Hunter assessing lawyers’ ability to gauge testamentary capacity. The results of the study were alarming, to put it mildly. Participating psychiatrists and solicitors were shown two [scripted and dramatised] client interviews with a businessman in late middle age looking to make a will: one demonstrating a good interview technique and the other, ahem, not. The client had suffered a stroke, which he apparently disclosed in both interviews, but he was still the possessor of what is described in the reports rather charmingly as a “social veneer”. However, there were sufficient clues for an alert lawyer to pick up that he might not have testamentary capacity, and in fact he did not.
For me, the really striking thing about the study is that when shown the “bad” interview technique, only 2% of lawyers spotted that the client potentially had a mental disorder and only 33% identified that there was a capacity problem. Robert Hunter commented that it is easy for solicitors “to confuse social graces with mental ability”, a view which I thoroughly endorse. When shown the “good” interview, 90% of the solicitors identified that there was a testamentary capacity problem.
This is an eloquent demonstration of how vital it is, when taking instructions for wills (and I would suggest powers of attorney too) to get the interview technique right. It is all too easy to be lulled into a false sense of security by a client who is telling you that s/he had a stroke six months ago but has made a marvellous recovery, particularly if s/he is appropriately chatty and forthcoming. Everyday politeness does not give you any real idea of whether s/he is in a fit mental state to make dispositions and can mislead you into thinking that the client is on the ball.
More than anything else, this study reinforces the point that taking will instructions involves connecting with the client on a friendly but objective level, and being watchful about what you see and hear. Robert Hunter commented that the “golden rule” that, when drawing up a will for an elderly person or someone who is seriously ill, a solicitor should try where possible to have the will witnessed by a medical practitioner, is often ignored without good reason. Although GPs are sadly not as connected with their patients now as they were in days gone by, a family doctor will often know right away whether a prospective testator is not on their usual mental form.
It is an unfortunate by-blow of recessionary times that disappointed legatees are much more likely to litigate over a will. In the past couple of weeks alone, we have had Paynter v Hinch, Kloosman v Aylen and Schrader v Schrader, some at least of which I hope to note more fully in the next week or so. There is a higher probability these days that the capacity of a testator will be at least queried and probably scrutinised.
The report apparently made five recommendations, including enhanced training in interview techniques for solicitors; creation of an association of specially trained solicitors to take instructions in problematic cases; and an increased awareness of mental capacity issues in this area. I enthusiastically support all of those, though I’m not so sure about the recommendation that there should be professional sanctions for a failure to observe the golden rule “without good reason”. That would in practice make medical witnessing more or less de rigueur in the execution of any elderly person’s will, and it seems to me that the more important factor is for the will draftsperson to be alert and to listen and observe carefully and sensitively rather than simply “doctor up”.
The last recommendation is that there should be videotaping of testamentary interviews, about which I have my doubts. There is always the forthright and flamboyant (or even defiant) testator who will enjoy the experience of giving instructions on camera, but most of us are reluctant enough to be bit-players in wedding videos, let alone starring in our own Truman Show in which we give what are often the results of intensely private and deep thought. This is probably particularly the case where the testator knows that somebody in the family is going to be disappointed by the effect of the Will. I suspect that few people really want to be video’ed upsetting a close relative’s expectations, however well-deserved they believe the comeuppance to be. It is going to be a matter for individual testators, obviously, but it seems to me to hold the danger of putting the desire for certainty above consideration for the elderly or dying person.
You may well now be saying, “Gosh, this seems like an interesting report: where can I read it?” My answer, after several attempts, is that I don’t know. It is possibly my IT ineptitude [should that be ineptITude?], but I can only find secondhand accounts of it and not the source material. If you have better luck, let me know.
The Telegraph reports today here that there have been 2312 complaints about the Court of Protection in its first year. This seems a lot. It may be that the balance has swung a bit too firmly towards protecting the vulnerable, although family members will often have gripes in this situation, because of its nature it’s distressing and frustrating. Note the comment that the OPG charged over £23million in fees for overseeing the work of deputies.