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Capacity issues: ending the reliance on doctors?

With growing reluctance on the part of GPs to provide mental capacity assessments, is it time for private client solicitors to look for assistance from other professionals, asks Gary Rycroft

23 May 2019

When it comes to mental capacity there is increasing frustration among solicitors that doctors do not have capacity.

By which I mean capacity in terms the time or inclination to carry out mental capacity assessments which are often an essential part of the legal practice of those of us dealing with the preparation of wills and lasting powers of attorney, Court of Protection work and contentious probate matters. 

Remember, remember the vexed so-called ‘golden rule’. It arose from a speech by Lord Templeman in Kenward v Adams and in many ways it epitomizes the dilemma faced by many solicitors that a legal rule should be assessed by a non-lawyer. 

While many commentators point out that the ‘golden rule’ is a statement of best practice to be followed only when the solicitor has doubts about capacity due to age or serious illness, it is nevertheless hangs over any situation where there is either or both factors present.

And by put...

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