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  • The current approach to assessing testamentary capacity is deficient.
  • The ageing population and complexities of living are creating new challenges and demands, but there is a disconnect between lawyers and doctors in addressing needs.
  • Lawyers and health professionals need to adapt to the new environment by coordinating their planning and development efforts at the national level.

Lawyers and doctors are increasingly taking widely divergent approaches when it comes to the specific task of assessing a person’s decision-making capacity. Simply put, lawyers remain legal while, to borrow a name from ‘oz rock’ recent history, the doctors remain mental as anything. One profession is from Venus, the other is from Mars.

Specific issues arise when assessing decision-making capacity in the legal context where the common law recognises three separate and distinct types of capacity – physical, mental and legal. An example of physical capacity is the ability to see and read documents. Legal capacity can simply be established by having attained a qualifying age such as 18 years of age. This article is confined to addressing mental capacity from the legal viewpoint.

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