Duties and responsibilities
Physicians and their patients' wills: issues to consider
An article for physicians by CMPA General Counsel
Originally published April 2002 / Revised April 2008
Physicians may be asked to attest to the capacity of a patient if the patient's will is contested or at the time the will is being prepared.
Of interest to physicians examining or treating adults
It is not unusual for physicians to be asked to give an opinion or to testify as to a deceased patient's mental capacity at the time the patient made a will. Legally this is called testamentary capacity, and the person who made the will is called the testator. There are a number of issues surrounding testamentary capacity and confidentiality that might affect physicians and of which they should be aware.
Physicians would most likely become involved in a testamentary matter after a patient has died and a dispute arises over the patient's mental capacity at the time the will was made. The physician may be called to give an opinion or to give evidence in this regard.
Physicians might also be asked to conduct a capacity assessment while the patient is living. A lawyer who is asked to prepare a will might send the testator to a physician for an assessment of mental capacity in situations where the lawyer has some question as to the testator's capacity and seeks a medical opinion prior to preparing the will.
When a will is contested on the ground of mental incapacity, the executors must prove the testator had a sound, disposing mind at the time the will was made. This means they must show the testator was able to understand what was being done, comprehend and recollect what property was involved and remember the persons who might be expected to benefit. The testator must also understand the extent of what is being given to each beneficiary and the nature of claims of others who might be excluded.
Most cases in which a will is attacked on the ground of mental incapacity of the testator fall into one of two categories:
- It is alleged that the testator's memory or judgment was impaired by physical or psychological illness. It is also possible that the side-effects of medications for such illness could cause such impairment. Those seeking to have the will set aside might allege that the impairment affected the testator's dispositions in the will.
- It is alleged that the testator suffered from senile dementia (including Alzheimer's disease). In such cases, those seeking to have the will set aside might allege that the patient's mental powers were so reduced by advanced old age or Alzheimer's disease that the patient was incapable of making a will.
A person suffering from any of these conditions may still have the necessary mental capacity to make a will. In other words, a patient may suffer from delusions or disordered thought processes in some areas, but understand what is being done in making a will. Each case will be very fact-specific, and it will be a question of degree whether the patient had sufficient mental capacity to understand the testamentary act.
With respect to capacity assessments conducted at the time the will is prepared, physicians should be aware that their opinions will likely play an important role in determining whether the patient has the mental capacity to make a will. Therefore, physicians should be vigilant in documenting that the patient was examined for the purpose of assessing testamentary capacity, the date of the examination and the findings of the examination. With respect to medical conditions that are more transient in nature, physicians should document their assessment of the patient's capacity as at the time of the assessment. If appropriate, physicians might also document that the nature of the patient's condition or the nature of the side-effects of medication are such that mental capacity can fluctuate.
In cases where a dispute arises over the will after the testator has died, and allegations are made that the testator lacked capacity to make a will, physicians may be called to give an opinion. Often the physician will not have been asked to conduct a specific assessment of testamentary capacity at the relevant time, but may have seen the patient for other health reasons close to the time the will was made. These cases sometimes require a trial to determine the issue of testamentary capacity. The physician may be called to testify and would also likely be cross-examined on such testimony. Therefore, physicians should be alert to the importance of carefully documenting observations or findings with respect to a patient's mental capacity. Physicians should be particularly vigilant in this regard in situations where they have some question about a patient's mental capacity, believe the patient might be contemplating making or changing a will, or sense a potential dispute concerning an elderly or infirm patient's will.
In these cases, the courts often must sort through conflicting medical testimony. While medical opinion about testamentary capacity is not conclusive because the court must make the ultimate decision, it is nonetheless important, admissible and relevant evidence.
Physicians might also face difficult patient confidentiality issues. Physicians are prohibited from disclosing any information about a patient without proper authorization or unless permitted or required by law. They may face civil and professional consequences and complaints to the Privacy Commissioner if patient information is disclosed improperly. Various court decisions have granted the deceased patient's authorized representative access to the patient's medical record. There may also be legislation, such as privacy legislation, which differs between provinces/territories, permitting physicians to release a deceased patient's medical record to an authorized representative. However, physicians might not be sure whether the person making the request or on behalf of whom the request is made is the deceased patient's authorized representative. Therefore, it would be prudent for physicians to verify, before releasing a deceased patient's medical records, that the person requesting the records is the patient's authorized representative, or that the person is acting for the authorized representative. In wills and estate matters this person may be referred to by different titles, depending on the relevant legislation in the province/territory. Some examples are Estate Trustee with a Will, or Estate Trustee without a Will, or Executor.
If physicians are uncertain whether the title of the person requesting the medical records confers appropriate authority on that person, whether the documentation purporting to grant the authority is authentic, or whether the person has obtained the title legitimately, they should contact the CMPA for advice. If physicians sense that there may be an underlying dispute (usually between family members) concerning who is the authorized representative, it would be prudent to seek assistance from the CMPA. Some regulatory authorities (Colleges) also have helpful guidelines about these issues.
The bottom line
- Physicians may be called to give an opinion or give evidence if a dispute arises over a patient's mental capacity at the time the patient's will was made. They might also be asked to do a capacity assessment while the patient is living.
- It is important to carefully document observations or findings with respect to a patient's mental capacity, including mention of conditions and/or medications that may cause mental capacity to fluctuate.
- Before releasing a deceased patient's medical records, physicians should verify that the person requesting the records is the patient's authorized representative or is acting for the authorized representative.
- Members who are unsure about any aspect of these issues should contact the CMPA for advice.