Assessments of Capacity

The role played by a client’s cognitive function or lack thereof, in the determination of testamentary and other forms of legal capacity is well-established (Lonie & Purser, 2017 Australian Bar Review; Shulman et al., 2018 Canadian Bar Review.)

The Law Society, together with leading Wills and Estates Practitioners and Medical experts acknowledge that in certain cases, it will be necessary to seek out the assessment and/or opinion of a medical expert around matters of legal capacity.

It is not, however, always readily apparent to the solicitor under which particular circumstances expert medical opinion should be sought, or indeed which specific medical skill set is required to address the specific set of questions arising in the context of the matter at hand.

In some cases, the medical expert is able to assist in directing the line of enquiry in manners that are pertinent to the case, though perhaps less apparent from a legal perspective. In other situations, the input of a medical expert may be of value in preparing or strengthening a case.

Do you have a specific capacity question that may affect the manner in which you proceed with a case?

Case review – obtain a preliminary case review from a medical expert prior to committing to a procedural pathway.

Telephone consultation – arrange a telephone consultation with a medical expert for a preliminary case discussion & directions advice.

Are you unhappy with an existing capacity report?

Ask a medical expert to review and appraise any existing evidence you have around a client’s capacity.

Are you representing a client for whom accessing expert medical opinion is difficult?

Remote web-based assessments of capacity can be undertaken where accessibility is a problem for your client (either in terms of physical disabilities, geographical constraints or lack of local expertise).

Dr Lonie provides telephone and web-based consultation services for legal practitioners seeking initial informal advice around:

  1. The need for independent expert medical opinion in civil & criminal matters;
  2. The appropriate medical professional(s) and skill set(s) required for your matter;
  3. Key medical considerations in relation to your specific matter;
  4. The scope for assisting and supporting a client’s cognitive function and capacity with a view to ensuring that the relevant legal criteria are met & documented.

Initial contact can be made using the web-based contact page or by phone on 0449 670 754.