Is it law that I need a mental capacity test if I wish to change my will if I am over 70 years old? I am in New Zeal;and

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Customer: Is it law that I need a mental capacity test if I wish to change my will if I am over 70 years old?
JA: What state are you in? It matters because laws vary by location.
Customer: i am in New Zeal;and not the States
JA: What steps have you taken so far?
Customer: i am asking on behalf of my mother who is aged 79 so at this stage we have taken no steps!
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: i dont think so, I am just seeking clarity around and this

Answered by Chris The Lawyer in 18 mins 1 year ago

Chris The Lawyer

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Chris The Lawyer, Expert

Hi
I am a New Zealand lawyer based in Wellington and will help you with your question today. Please give me a minute to read the question

Chris The Lawyer, Expert

No-it is not compulsory. If you think the will will not be challenged and the family will be content with the estate division, such as everyone shares equally, then it would not be necessary. Where there are likely to be issues, then getting her GP to give a medical certificate as to capacity would be a good idea.

Customer

Hi there, thank you for responding. I have a letter from the doctor currently in-charge of her care which states she is mentally capable. There is an added complication - she has given me EPOA of her property and finances but only when she is deemed not mentally capable. Her circumstances are changing physically - she has become wheelchair-bound and may be that way for the rest of her life and she is going to need 24/7 residential hospital care. She would like me to be her attorney effective immediately but that means she needs to change the current EPOA. The lawyers who hold the EPOA say that she needs the mental capacity test in order to prove her CAPABLE of doing this - is that correct? Thank you.

Chris The Lawyer, Expert

Yes-if she wants to change the EPOA or give one for health and welfare she should get a capacity test

Customer

she 'should' or she is absolutely required to by law? and is this because she is over 70?

Chris The Lawyer, Expert

I think "should" because the lawyers may want this to prepare the EPOA. But her current letter should be enough

Customer

I'm still confused. Either she can go ahead and change it without the mental capacity test or not. When i asked the doctor and the social worker they both said it was not usual to do that test unless you were trying to prove that is NOT capable. Is it at the lawyers discretion and does each lawyer have their own rules? IS there not a standard for everyone and every situation?

Chris The Lawyer, Expert

It is up to the lawyer because good practice is to ensure the client is of full capacity. They may be satisfied with the letter, but you need to ask her lawyer what they require

Customer

ok, so best practice is not the same as a legal requirement, is it? I just feel like I am getting mixed messages from different people regarding this and it is not easy to talk to people and coordinate everything - for a start my mother is in Cambridge and I am in Auckland and I work full-time so access is difficult and I am the only family member in NZ.

Chris The Lawyer, Expert

The lawyer may insist so that they cannot be later criticised for not checking capacity. But it is not a legal requirement to undertake a specific check of capacity

Customer

if they insist and we cannot get the test done in time can we change lawyers?

Chris The Lawyer, Expert

Yes, you can use any lawyer you want. But ask if the letter is enough as it could be sufficient

Customer

one final question: I am having trouble getting the lawyer to respond to me how long do I wait before I change lawyers?

Chris The Lawyer, Expert

Give them an ultimatum-usually a couple of days is all that they should wait if you are emailing

Customer

ok great! thank you, you've been very helpful, i appreciate your time. If I have further questions can I contact you via this page or do i need to go through the website again?

Chris The Lawyer, Expert

You can just ask for me on this site and I can respond

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