How Is a Will Determined When the Person Has Reduced Mental Capacity?

A cornerstone in the legitimacy in the preparation of wills and estates is the mental capacity of the person in question. While the majority of persons will prepare their will in line with their personal wishes, some people lack the capacity to make appropriate decisions when it comes to the disbursement of their estate. This diminished capacity is through no fault of their own, and could commonly be attributed to mental illness, dementia or Alzheimer's disease. It could be that no will is made at all, or that the will grants excessive favour to an individual (not necessarily due to deliberate influence by this person), or even that a number of unexpected (and arguably unwarranted) beneficiaries are added to the will. Whether you stand to be a beneficiary or not, what can you do if you're concerned about the capacity of someone in your life when it comes to making their will?

An Existing Will

It could be that the person made their will before their capacity was affected by illness. This is preferable to no will at all, and, while it might not reflect any recent changes to their life, it will ensure that key beneficiaries (and what they will inherit) are named. It at least provides a framework for the disbursement of the person's estate, although certain sections could conceivably be contested.

Determining Capacity

If you are concerned about the capacity of the person in question, you should contact the Office of the Public Guardian in your state or territory. Officiated at the state government level, this department protects the interests of individuals of any age with reduced decision making capacities. The office might choose to investigate, which involves an assessment of the person, partially via a consultation with their doctor and carer. It might be determined that the person's decision making capacity is intact to the point that they understand the ramifications of making their final will, along with how they have decided to bequeath their assets.

An Appointed Guardian

If there are provable concerns about the ongoing decision making capacities of the person, then an enduring guardianship might be established. This guardian is generally a friend or family member who then has the legal authority to make decisions for the person in question, including making a will on their behalf. However unlikely it might be, there are measures in place to prevent the guardian from abusing their position for their personal gain (such as manipulating the person in question in order to receive a greater share of their estate). If you are concerned that this is happening, you can lodge a request with the Office of the Public Guardian to investigate. In extreme cases, the enduring guardianship can be revoked, and any decisions made by them can be reversed.

The notion of diminished capacity in terms of planning a will is not a pleasant one, and yet it's good to know that there are a number of protective measures in place.

About Me

Workplace Law: What You Need to Know

My name is Ian. I used to work at a bank. However, I don't work there anymore. My boss was a bit of a bully. He would make jokes about me in front of other people in the office and would constantly criticise my work. I didn't know what to do. I was very unhappy. I mentioned the situation to my friend who recommended that I visit a lawyer as he thought I might have a case. I was a little apprehensive, but my friend supported me. Going to a lawyer was the best thing I ever did. The employment tribunal ruled in my favour and I was given an official apology and a compensation payout. I have now started a new job which I love. I decided to start this blog to educate others about workplace law.