Over the course of the last two years the number of British adults with reduced mental capacity has increased dramatically, and there are now more than two million UK adults who could be identified as having capacity issues. This has, of course, been further exacerbated by the impact of the pandemic, so much so in fact, that symptoms of depression, anxiety and other potentially debilitating conditions have almost doubled in the UK since Covid-19.
Being able to correctly assess mental capacity can pose a problem for legal professionals, not least because they must be able to ensure the mental capacity of any client before they actively engage with them to undertake the will-writing process and the witnessing of the same. Practitioners will need to be able to demonstrate, that their client has the capacity to make the necessary decision, both in a way that can satisfy the courts and hold up under clinical scrutiny.
The pandemic has not only increased the number of mental capacity issues that legal practitioners are coming across on a daily basis, but it has also hugely impacted the way they deal with, and indeed, spot them. Pre-Covid, mental capacity assessments were conducted face to face. However, as a result of the various lockdowns we have all faced in the UK and globally, processes have had to adapt quickly and turn towards online will and video witnessing instead; something that many practitioners were (understandably) nervous about when it came to the mental capacity assessment side of things.
And you can see why. Because when it comes to online wills, arguably there still aren’t enough safeguards in place to stop people being financially abused. And even if a will is signed with two witnesses online, it is difficult to be certain that, one or both, are not signing under duress.
In late 2021, The Law Society surveyed over 720 will practitioners to better understand the use of video witnessing wills during lockdown and whether the practice of online witnessing should be extended. The results were mixed to say the least. Of those using video witnessing throughout the pandemic, 58% indicated they would use this approach after the pandemic if it remained an option, whilst 35% reported they would not. In addition, 44% of respondents believed that online witnessing increased the risk of abuse.
Let’s be frank here, the technology isn’t perfect yet, but the question is, does it need to be? One might argue that it just needs to be as good – if not better – than what we have now. Because let’s be honest, conducting the process online has so far served a very real purpose. Bluntly, if people couldn’t sign online during the pandemic, multiple people just simply wouldn’t have had a will over the last few years. We know what 14% of solicitors used remote will witnessing during lockdown, and as such it’s important to consider what those people would have done had online witnessing not been available. Whilst perhaps these are low figures, this data isn’t something to be taken lightly.
I also think we need to consider what channel the customer wants to engage with too. After all, it’s not enough to merely rationalise that solicitors dislike online wills and be done with it. Rather, we should keep in mind that the end customer will have their own channel preferences too. Some will want to engage face to face, others will only want to engage online, and many will simply want the easiest and quickest option. There is no one size fits all here.
Certainly, moving from face-to-face to more remote settings over video during the pandemic, has made it harder for solicitors to spot some forms of vulnerability, especially those such as coercion. But I think we need to take stock here, because there seems to be a false belief that face-to-face assessments are always 100% perfect. We all know that in reality they are not. If you have a bad assessor, their outcomes will be poor regardless of whether the assessment is online or face-to-face. Likewise, if the assessor is good, they will make the necessary adjustments to ensure the online assessment is just as good as a face-to-face assessment. Video conferencing is just another medium or tool that we can use – it is the skill of the practitioner that determines how well they use it.
When the Law Society asked how the pandemic has impacted practitioners’ views on the use of technology, 30% said they were more likely to support tech in the will-writing process, 24% said they would be less likely to support tech and 44% said the pandemic did not impact their views.
At Comentis, we believe that technology is here to stay, and when used correctly, can support and form part of the solution for legal practitioners, no matter what channel they end up using with their clients. The key, of course, is developing the right tech tools to support and bolster the human approach, whilst also reducing and minimising the risks at the same time.
Utilising a more tech-based objective and robust capacity assessment (whether that be online or conducted face to face) will ensure that solicitors don’t fall foul of their capacity requirements. It also stands them in good stead if wills or other client decisions are challenged. Our Cognitive Assessment Engine can be easily integrated into existing customer workflows and client journeys and is designed to feel as unobtrusive as possible. The technology automates the capacity assessment, highlights any potential problems and captures the results, giving firms a fully consistent and auditable approach, so that the solicitor can be ready to answer any challenges.
We have found that the risks of online tools are very often born out of our inner fears and anxieties, rather than reality. No matter what channel is being used, the fundamental principle here is whether a legal practitioner is working in their client’s best interests. Because, at the end of the day, that’s all that matters.
Tim Farmer, Co-founder and Clinical Director, Comentis
