In April 2019, the Law Commission welcomed new research on the potential for reform to Will making for individuals with intellectual disability.
The study, entitled, Supported Will-Making: A Socio-Legal Study of Experiences, Values, and Potential in Supporting Testamentary Capacity (the report) authored by Professor Rosie Harding, Dr Ezgi Taşcıoğlu, and Magdalena Furgalska, looked at the practicalities of people with intellectual disabilities when creating a Will and how these can be overcome with changes to the law.
Supported decision making (SDM) in the UK
Supported decision making refers to the endeavour of helping an individual with a disability to make decisions about important life choices. Historically, the view was taken that individuals who as a result of their disabilities had impaired decision-making ability, also lacked capacity, but in recent years, the UN Convention on the Rights of Persons with Disabilities (CRPD) have challenged this view. Article 12 of CRPD states, “parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”.
According to the research by Harding et al. (as cited above), none of the UK’s jurisdictions has fully adopted UNCRPD’s stance that all people with disability have the same rights as others to enjoy legal capacity. Instead, the statutory framework of the Mental Capacity Act 2005 (MCA) outlines how adults with cognitive impairment should be able to make decisions. The study, however, found that the MCA has the effect of making the rights of a person with an intellectual disability dependant on the context of the decision being made – a less clear position than that of the CRPD, which is viewed as having the most expansive position on this matter.
Contention between tests for testamentary capacity
The report also found that conflicts exist in the understanding needed and burden of proof required between the Banks v Goodfellow (the common law test) and the MCA tests of capacity, which can pose challenges for those with an intellectual disability. Banks v Goodfellow only requires that a testator “appreciates the claims to which he ought to give effect”. Under the MCA, the testator must understand all of the information within the Will. Furthermore, while the MCA presumes capacity, under the common law test, this is only assumed when duly executed and “appears rational on its face”; if this is not the case, the burden of proof switches to those claiming the testator did have capacity.
Due to the differences between the common law test and MCA principles for testamentary capacity, which for those with an intellectual disability could lead to unnecessary complications when drawing up a Will, the study recommended reform is needed in this area. They also urged the MCA be changed to clarify how individuals who require additional assistance can seek the support they need.
Reform needed at the front line
The study took a look at the real-life Will-drafting experiences of people with intellectual and sensory disabilities. It was discovered those affected by intellectual and sensory disabilities faced challenges with accessing help from front-line care and support staff regarding making a Will. Furthermore, communication with Solicitors was not always easy. To this end, the authors believe that improved training is needed for:
- front-line care staff and statutory advocates on the “importance and practicalities of will-making to better support testamentary choices”, and;
- legal professionals of all levels to better communicate with clients with intellectual, physical, and sensory impairments.
While such reform should be welcomed, legal professionals working with vulnerable clients, including people with intellectual disabilities already have resources available, and as such, do not need to wait to ensure their practice accommodates those with specific needs.
Advice for law professionals working with intellectual disabilities
Under the ‘reasonable adjustments’ duty of the Equality Act 2010, you are required to anticipate the needs of certain types of disability. In particular, to ensure tailored and appropriate communication for any client with a disability, the Law Society recommends:
- ensuring your website and any information you provide is as accessible and jargon-free as possible
- ensuring your offices are accessible and well lit. It is also important to have sufficient space for family members, carers, or advocates to attend meetings jointly
- providing the option to meet clients in their home
- allowing extra time for meetings with clients who may need longer to understand what you are explaining
- enlisting the help of an appropriate third party
- providing information in large print, Braille, audio, DVD or easy-read format
- providing written text on a coloured rather than a white background; this can be particularly helpful for dyslexic clients or those with a visual impairment, and they can advise you as to which colours to use
- providing a sign language interpreter, lip-speaker or deaf-blind communicator
- providing a reader for clients with visual impairments
- installing an induction loop or having a portable one available
- having the facility to conduct conversations with clients using the text relay system
- providing a digital recorder, Dictaphone or electronic note taker
Anticipate the needs of your client
No one should assume lack of capacity, and in the same light, we shouldn’t presume to understand the parameters of an individual’s disability; intellectual or otherwise. Seek to clarify your client’s type of cognitive impairment and then determine a strategy with this in mind. For example, if the client has impaired memory, but otherwise understands the intent and purpose of the Will they are entering into, you might adapt your use of language, break the Will writing process into smaller chunks, and seek to clarify their understanding regularly.
Ultimately, there should be no automatic presumption that a prospective client lacks capacity, and disability should never be a barrier to having a Will. By putting in place best-practice measure to work effectively with clients with a range of needs, we can ensure they have the same access to legal services as anyone else.
