The Nature of the Problem

have a duty to serve the best interests of my client. So when a client instructs me to prepare a Will, I must do my best to produce a document and have it executed so that the client is satisfied with it and it will achieve what he wants. There are a number of issues here, that arise at the outset namely: a) the nature of the instructions (i.e. their form and reliability) b) my response to what I perceive as deficient or imperfect instructions c) what do I need, to continue to act Let us look at these more closely.

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While we are less likely to be faced with the question of intervening in the life of a person who chooses to live on the street, we are more likely to have to respond to the person who chooses to live in isolation with a growing unawareness as to their physical wellbeing and safety and deteriorating insight into the management of their financial affairs and property. Society chooses to intervene in such situations. Such intervention may lead to the loss of the person’s independence and the power they have to direct their lives and their affairs. As a society we impose on them a structure determined by others.
Before observing how this process operates it is worth considering for a moment what may be the motives behind it. One explanation is that society through its elected representatives decides that as a matter of policy it is desirable to intervene in people’s lives to arrest a deterioration in the person’s health, to provide care earlier rather than later on the basis that this is more cost effective. It is simply a better use of resources to enable the person to be cared for at home rather than in an institution. Furthermore preserving the person’s property and estate by forceably removing it from the person’s control provides the funds that might be available to care for the person. By reducing the cost to the State this is seen as financially responsible. So one motive might be that intervention by the State, albeit dressed up as being morally responsible, may be driven largely by cost benefits.
Intervention in a person’s life is also often initiated by a family member or friend. When such person can anticipate a benefit from the person’s estate the motivation to move control of the person’s estate from the person to another party may be one of self-interest.
But family and friends are often motivated by straight forward love and concern for the person and their general welfare. They recognise the sadness and inevitability of their loved ones deteriorating functions. They see the stark contrast between freedom and personal integrity on the one hand and control and social compliance on the other. The dilemma of maintaining or taking away power and independence can be very painful. But with the advance in medical science we have a steadily aging population and with the increasing value of property in various forms, particularly real estate, we have the increasing risk of loss of assets, and the likelihood of a call to intervene.

The Assessment Process

So what does society actually do when faced with someone who may not be able to care for themselves or manage their affairs, that is, may not have capacity?
In the context of a conflict as to the question of capacity, how is a decision arrived at that the person has or does not have capacity?
In the past, capacity was regarded as a global concept, that is, it was either totally present or not present at all. The concept has become much more refined and the question now is “Capacity to do what?” It is now generally accepted that capacity can be domain specific, that is, a person can have capacity in one area of their life, e.g. personal hygiene, but lack it in others. Additionally, within a particular domain a person’s capacity may vary. They may be able to make simple decisions about their money but not more complicated ones. The process of assessing whether a person has the capacity to make decisions about very simple matters may be relatively easy. Nevertheless it is a decision that needs to be made and professionals are in the front line in this regard. Nurses, doctors, lawyers, social workers, psychologists etc will make thousands of decisions in their day to day work about capacity that will never be challenged. Nevertheless they should get it right. The starting point is a presumption of capacity and a decision of lack of capacity should only be made when it can be “firmly established” that the person lacks the ability to make the decision and is therefore at risk. The key to this process is whether the person can understand and appreciate information not whether they are able to implement the results of their decision.
It is the big decisions that are the problem. These are the ones that create the conflict whether between the person and family, the person and professionals, the family and professionals. A decision as to ability to manage financial affairs, to instruct a solicitor, to make a Will, to decide where to live can have far reaching effects not only on the person but on those around them. So the process of arriving at a decision as to capacity has been criticised and refined for some time. Capacity is not something that can be produced in Court and labelled as an exhibit.

“Capacity is difficult to measure. It is a concept and not a tangible material object which can be weighed on scales, seen under a microscope or measured with a ruler.”

The law has constructed a variety of tests for capacity depending on the particular situation. There is therefore a different test for capacity to manage financial affairs, compared to capacity to make a Will. When faced with the question of capacity the Courts have turned to the medical profession for evidence upon which the Court can decide as to the existence or not of capacity. In relation to any of the tests the medical expert is required to give an opinion on each of the various criteria set out in the test rather than to express an opinion as to whether or not the person has capacity. That decision is one for the Court.

“When such evidence is given it is the task of the tribunal of fact to arrive at ‘an understanding of the real content of the medical opinion relied upon’ and, with that understanding, to decide whether the evidence which the expert gave in terms of scientific possibility amounted to proof on the balance of probabilities for legal purposes.”

The question of capacity to make a Will continues to be brought to the Courts. Medical assessment plays a significant part in these cases. General practitioners and more often psychiatrists and psychologists, particularly those specialising in geriatric medicine, are asked to write reports. Quite often the professional evidence is conflicting. It is therefore important that these reports be as thorough and comprehensive as possible.

“The assessment of testamentary capacity which requires integration of clinical assessment, cooperative family witness accounts and medical record review can be a challenging exercise in ‘detective work’ for the medical practitioner. Such an assessment should be approached in a structured way with a systematic assessment of all four elements of testamentary capacity.”

Drs Peisah and Brodaty recommend a comprehensive approach to the evaluation of capacity including an awareness by the practitioner that the question of a challenged capacity is likely to arise in regard to a substantial estate. There may therefore be a lot at stake for the parties. The doctors recommend a detailed consultation with the lawyer seeking the report. The interview with the client should be as contemporaneous with the execution of the Will as possible and if need be, more than one consultation might be required. The advantage of a witness is raised and the importance of rapport with the client. The nature of the examination is discussed in some detail and the records that should be examined. Drs Peisah and Brodaty also discuss the situation of providing a report after the person has died without having had the benefit of a consultation. Such reports can be prepared and are reliant on the medical and other records that are available.

“The evidence is received as evidence of scientific or medical fact. The purpose of the evidence is to give the judge or jury the necessary scientific or medical criteria for testing the accuracy of their conclusions, so as to enable them to form their own independent judgment by the application of those criteria to the facts proved in evidence.”

But the Courts have experienced difficulties with expert evidence.

“the fact that it is now apparent that many judges are so troubled about the quality of medical, accounting, scientific and engineering evidence that they are prepared to give serious consideration to such aids to expert evidence assessment as the appointment of referees and assessors has many ramifications.”

The survey of Australian judges carried out by Dr Freckelton and others encompassed all 478 Australian judges. Over half of them responded. This is the first time that such a survey has been conducted. The results confirmed that the Courts need expert opinions so as to have the benefit of these insights and perspectives. The quality of the expert is frequently relied upon

“However the forensic reality is that experts, especially in civil and family litigation, are retained by one party which is intent upon winning the case, or, if that is not feasible, upon minimising the extent of their loss. Each party pays for the experts of its choice, selecting them on the basis of the extent to which, by their opinions and the way that they express them, the experts will advance the party’s contentions (sic) case. Selection of expert witnesses is not generated by a dispassionate quest for truth by either the courts/tribunals or the parties.”

BThe survey further referred to the expert being in a dilemma by being responsive to the person paying his fee on the one hand and the needs of the Court for fact finding. The response to this survey expressed concern about experts’ lack of objectivity and, on occasions, overt bias. Further there was concern as to the “phenomenon of the expert functioning principally as a forensic expert – especially the medical practitioner retired or semi-retired from active clinical practice.”
A difficulty is the situation where eminent experts express irreconcible views. The judge must then decide which, if any view, will be relied upon. Some seventy per cent of respondents in the survey stated that they had not understood the expert evidence. They blame this on the inadequacies of the expert in articulating their evidence.

“In short, the decision-maker needs to feel secure that their application of an expert opinion to facts in dispute is truly fair and reasonable. In turn, this will be a function of their perception of the quality of the evidence before them.”

A majority of the judges responding believed that the reliability of an expert is adequately evaluated in a court situation. However there was “overwhelming support for training for expert witnesses to communicate their views better and to fulfil their role as forensic witnesses more professionally, as well as for lawyers to discharge their roles as examiners and cross-examiners more effectively.”

There was strong, in principal support, for Court appointed expert witnesses and assessors and a clear underlining theme that judges want expert help that is objective and reliable. They believe that there should be a code of ethics and practice for forensic experts and the surveyors suggest a mandatory declaration for all expert reports (see appendix A) so that judges can feel that there concerns are dealt with. These concerns indicate a lack of partisanship, relevant prior experience, stay within their special competence and be thoroughly prepared.

Some Court Cases

In February, 2001 Mr Justice Foster dealt with a case of Shorten v. Shorten (2001) NSW SC 100 (3 April, 2001). The case involved a dispute concerning the last Will of the deceased. The dispute was between the various children of the deceased. The deceased died on the 6 February, 1999 and had made her last Will on 25 January 1996, aged 84 years. It was claimed that at the time she made her last Will she did not have testamentary capacity and that a prior Will should apply. The Court found that at the time the deceased made the last Will she did in fact have testamentary capacity.
The Court heard what Mr Justice Foster described as, “the lay evidence” and “the medical evidence”. The lay evidence was considerable and involved a number of people who had directly communicated with the deceased during her life. At the time the last Will was made the solicitor instructed by the deceased arranged for an independent solicitor to make an assessment as to the deceased’s testamentary capacity. The Court spent some time dealing with the evidence of the independent solicitor who, amongst other things, referred to the fact that he had spent one and a half hours with the deceased who had considerable difficulty expressing herself due to a stroke. The medical evidence was in the form of several specialists engaged for the purpose of the hearing. Mr Justice Foster’s judgment includes the following:

“Neither of these specialists had attended the deceased in her lifetime. Each gave opinions based upon medical and nursing records from the Tamworth Base Hospital and the Peel Nursing Home together with the witness affidavits filed in the case. As might be expected their evidence was highly technical. It was also lengthy”

His Honour then referred to some of the transcript taken in the course of the hearing
Dr Bell also made the following observations in answer to questions:
‘HIS HONOUR: I suppose, we are dealing here with diagnostic categories, within which there are graduations and variations is that right?
A. Yes.
Q. But to a large extent with cases of this kind, they have to be fleshed out by what reputable observers can tell you about the way a person behaves?
A. Yes.
Q. And that would be so whether a layman is trying to understand the situation as well as a person in the medical profession?
A. Yes your Honour.”
I accept this evidence of Dr Bell. It indicates to me the great significance that should be accorded in this case to the observed abilities of the deceased.”
Despite the detailed evidence put before the Court by the experts the judge clearly placed great weight on the evidence of the lay witnesses who had direct contact with the deceased (“observed abilities”). It appears that there was no attempt to obtain medical evidence of the deceased’s capacity at the time she executed the Will apart from the limited evidence of her general practitioner which did not sway the judge. One wonders what the effect of a report along the lines of that recommended by Drs Peisah and Brodaty would have had on the Court.

In Ranclaud v. Cabban (1988) NSW SC a 79 year old woman asked the Court for an Order directing that her cousin hand over documents held by him under a Power of Attorney which had been revoked. The cousin asked the Court to order that she did not have capacity to manage her affairs and therefore was not able to instruct her lawyers in regard to the conduct of the case and that therefore her application should be dismissed. The Court agreed with the defendant. In the course of the hearing the Court referred to the test as to capacity to manage her affairs established by Powell J in PY v RJS (see appendix B). The plaintiff had during a period of six months, shortly before the hearing, executed alternating Powers of Attorney on six occasions. These facts weighed on the Court. However the Court also heard a considerable amount of contemporaneous medical evidence from both sides some of which was in direct conflict. The Court found that the plaintiff consistently held the view that she did not wish her cousin to manage her affairs but that she wished Mr Trisley to manage her affairs. Notwithstanding these consistent and firmly held views by the plaintiff the Court nevertheless held that she did not have capacity. In the course of the hearing the plaintiff was cross-examined by the defendant’s Counsel. Mr Justice Young went to some lengths to allay fears that such a process for the plaintiff, given her age, would be unreliable. Nevertheless it is interesting to contemplate the extract from the transcript included by His Honour in the Judgment. Some of the consecutive questions put to the plaintiff in a short space of time were:
Q. Did you give him authority to draw on your account?
Q. Is that what you want to do?
Q. What is it that you want?
Q. It is true, isn’t it, that you moved to the rest home in Thirroul in August last year?
Q. Do you want Mr Cabban to look after your finances?
Q. Who is Mr Trisley?
Q. Who do you want to manage your affairs?
Q. Have you always wanted that?
Q. Where do you now live?
Q. What is your address in Newcastle?
Q. How long have you lived there?
Q. Have you ever lived at Thirroul?
Q. Do you remember the day on which you were born?
Q. What year?”

It is difficult to understand that the Court imagined that it had some kind of rapport with the plaintiff and that the evidence received directly from her was reliable. Notwithstanding her persisting with wanting Mr Trisley to manage her affairs rather than Mr Cabban the Court took the view that the plaintiff had severe problems. It was not enough that she appoint a Power of Attorney but that she also be able to direct the attorney as to what he could not do. Further it was not enough that she be able to instruct a solicitor to act for her but that she also be able to accept his advice and to then give further instructions. Again notwithstanding that she persisted with her instructions concerning Mr Trisley the Court stated “however she just does not in my view have the ability to weigh up alternatives and make decisions and give instructions to any representative which are likely to remain constant from one day to the next.”
In addition, the Court heard considerable medical evidence. As to the medical evidence for the plaintiff the Court expressed the view that the medical experts had not been informed by those seeking their opinion as to the nature of the test that the experts were being asked to comment on insofar as testamentary capacity is concerned. It appears that the Court held that because this question was not adequately addressed by the plaintiff’s experts that the evidence therefore suffered. Again one wonders whether a medical report along the lines of Drs Peisah and Brodaty, or comprehensive lay evidence, would have effected the Court’s decision.