Capacity assessment and estate planning – the therapeutic importance of the individual

Demand for testamentary and financial capacity assessments is increasing. Such assessments are necessarily conducted on a case by case basis, highlighting the effect that individual experiences of the assessment process have on the outcome. For example, feelings of nervousness and apprehension can negatively sway both the process and the outcome. However, little is known about the symbiotic relationship existing between the assessment process and the individual. In seeking to understand this fundamental viewpoint and to identify potential improvements in the assessment process, a literature review was performed. No studies were located that specifically addressed the individual perspective having undergone a testamentary and/or financial capacity assessment. Consequently, literature from related areas addressing the individual perspective was analyzed to identify any potential issues and recommendations. The lack of literature addressing individual perceptions of capacity assessment is concerning given the rise in mentally disabling conditions and resultant assessments. This gap could facilitate suboptimal paradigms of capacity assessment in the testamentary and financial capacity context. This presentation contends that it is through seeking to understand participant experiences of the assessment process that best practice models will be strengthened. It will explore the importance of the participant perspective in capacity assessments through the novel lens of therapeutic jurisprudence