Assessing testamentary capacity – who does it better? Lawyers or doctors?

Purser, Kelly (2015) Assessing testamentary capacity – who does it better? Lawyers or doctors? In XXXIVth International Congress on Law and Mental Health, 12 - 17 July 2015, Vienna. (Unpublished)


The effects of mentally disabling conditions on legal capacity are escalating, particularly given the ageing Australian demographic. Wills, enduring powers of attorney, and advance health directives are coming to the fore as a means of ensuring that the wishes of people with regard to their property, finances and health care needs are respected should they become legally incapable of making their own decisions. Assessing when a person has lost legal capacity in this context is an ever-increasing concern facing society as a whole but, in particular, the legal and medical professionals conducting the assessments. Empirical and doctrinal research has been undertaken which canvassed legal and medical opinions about the relationship between members of these professions when assessing legal capacity. This research supports the hypothesis that tensions exist when assessing capacity, especially testamentary capacity. One source of tension is the effect of conflicting evidence about the loss of legal capacity given by legal and medical professionals in court, which raises questions such as: which evidence is, and should be, preferred; and who should be responsible? The exploration of these issues will be conducted with reference to the empirical data collected, and a review of the relevant Australian case law.

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ID Code: 87005
Item Type: Conference Item (UNSPECIFIED)
Refereed: No
Keywords: Assessing capacity, Medico-legal, Legal and medical practitioners, Evidence, Ageing population
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000)
Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Current > Research Centres > Australian Centre for Health Law Research
Current > Schools > School of Law
Deposited On: 01 Sep 2015 00:12
Last Modified: 01 Sep 2015 00:15

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