Not Everyone Can Make a Will

Lawyers have a duty to assess Jeremy’s father’s competency to make a will.  This is a legal and ethical responsibility that lawyers have, especially in dealing with the elderly.

Lawyers must be prepared to testify in court, if necessary, to defend the wills they prepare. This means confirming that Alex was competent to instruct a lawyer to make his will.

It is not enough that Alex knows and can express his wishes.

There is a legal standard of conduct that must be met. This means Alex must know:

  1. he is there to make a will;
  2. understands what his financial resources are;
  3. who would normally receive his property; and
  4. how he plans to distribute his worldly goods.

What if Alex had any diminished capacity, hearing problems or comprehension difficulties?

Could Jeremy answer the lawyer’s questions for Alex to save time?

This is usually a concern when people know lawyer’s charge by the hour. But by doing this, Jeremy may be interfering with a more important process; Alex’s lawyer’s assessment of Alex’s ability to instruct his lawyer independently.

Any difficulty in answering questions may demonstrate Alex had diminished legal capacity.

Alex’s lawyer may then need to take steps to protect his client’s legal interests. This could include asking for a further visit or medical assessment of his capacity to make a will.

And what about elder abuse?