Postmortem retrospective testamentary mental capacity assessments from a Social Work approach.
When an individual's last will and testament is contested on the grounds he or she lacked capacity at the time of making the will, a contemporaneous retrospective assessment can be undertaken by a health or social care professional. This can involve an assessment of the individual, medical records and discussions with family and visitors in an attempt to determine the probability of capacity at the time the testator signed the will.
Unfortunately, it is more common than not for the testator to have passed away before the will is contested. This results in a postmortem retrospective testamentary (PMRT) capacity assessment to be completed, historically these have been completed by psychologists or medical professionals.
An assessment of capacity whether it be testamentary or for any other decision needs to look at several different aspects of the individual and provide evidence specific to the appropriate legislation to ensure decisions are made based on the legal framework. In the case of a PMRT capacity assessment the specific case law Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) needs to be addressed in any assessment, failing to provide sufficient evidence could potentially result in the nullification of the assessment.
The primary skills of a Social Worker specialising in adult social care are assessment and decision making. Whether social workers are making an assessment of need, assessment of risk or assessment of capacity they utilise skills and theories, such as systems theories, to understand the milieu of the individual to ensure assessments are holistic.
Systems theory promotes a holistic view of assessment looking at the individual, their family and friends, and relevant legislation and policy. This approach to the testator allows for a broader reflection of their social environment. A social worker is able to identify evidence from both the micro and macro levels and then apply his evidence to the overriding policies and legislation (mezzo level).
This allows for not only a review of the testator's medical records but also the ability to gain an assessment of evidence from a wider range of sources such as interviews with other professionals and discussion with family and friends whom may have had contact shortly prior to the testator creating the final will.
Social Worker’s skills and working knowledge are perfectly adapted to mental capacity assessments, The department for health states “Social workers have a key leadership role in modelling into other professionals the proper application of the MCA”. But a PMRT assessment requires an element of investigation as mentioned more than a review of medical records is required.
The Mental Capacity Act (2005) and case law stemming from this are designed to safeguard vulnerable adults whilst promoting their decision making. Retrospective capacity assessments should be treated in this same vein, whether the outcome is the promotion of the persons right to make decisions or safeguarding of a vulnerable adult.
Social Workers are experts in safeguarding investigations and have set procedures in place to ensure outcomes from investigations are evidence-based. A safeguarding investigation weighs up the evidence gained and explains the rationale behind the weight placed on each piece of evidence.
Outcomes from safeguarding investigations are based on the probability of the hypothesis being true /false rather than an assertion, the 3 possible outcomes being:
1. Substantiated - I have clear evidence that this allegation is true.
2. Not substantiated – I have clear evidence that this allegation is untrue.
3. Inconclusive - The evidence does not allow us to reach a conclusion on the balance of probabilities.
The making of a professional decision in a legal situation such as for a PMRT assessment comes with it's own challenges, the decision needs to be underpinned by evidence, relate to the necessary case law and be able to be challenged if necessary.
Social Work practice is underpinned by law which “provides a framework to guide and assist social workers in making crucial decisions”. Decision making is a key aspect of Social Work, but decisions made have to be supported by evidence.
The skills and knowledge established in Social Work are directly transferable to retrospective capacity assessments. By adjusting safeguarding investigation procedures to ensure relevant case law is predominant throughout PMRT assessments from this perspective can ensure they are evidence-based, holistic and outcome decisions are able to resist challenges.
If you would like to find out more about how our professional, qualified and registered Social Workers can support with all forms of capacity assessments you can find more information at
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