A psycho-legal protocol for assessing testamentary capacity and capacity to appoint an enduring attorney

This thesis addresses the issue of assessing testamentary capacity and capacity to appoint an enduring attorney or guardian (EPA), and the criteria by which judgment is made concerning its acceptability. Its concern is largely with legislation in Queensland, and informed by experience in other countries and other jurisdictions. The basic criterion of acceptability is that a person must have capacity to make a Will or appoint an EPA. There is a presumption of capacity; however, this presumption can be rebutted if a person does not meet the relevant legal test of capacity with added empirical evidence about cognitive functioning. This thesis reports basic empirical studies from: focus groups of GPs (n = 13), lawyers (n = 7), and psychologists (n = 7); questionnaire results of medical practitioners (n = 35), legal practitioners (n = 55), and allied health practitioners (n = 45); and clinical research on the legal capacity of persons with memory difficulties (n = 38). The empirical evidence is that when professionals are made aware of the perspectives of other professional groups a consensus is reached. Furthermore, assessors consider factors that contradict the Guardianship and Administration Act 2000 (Qld) Guiding Principles and may contravene the Convention on the Rights of Persons with Disabilities (UN General Assembly, 2007). Psychometric tests were of more use in buttressing determinations of capacity (sensitive) than identifying participants who lacked capacity (specificity). The conclusions drawn are that additional training is needed for practitioners working in this area, and that certain cognitive tests enhance the confidence with which statements on capacity can be made.