How can I protect a patient 'forced' to change their will?
Three experts advise a GP who might have uncovered a case of elder abuse
You have an elderly patient living in her own home who suffers severe dementia. While discussing her condition with her son, who you don’t know well, it transpires that he has recently ‘got her to change her will’ in his favour. You feel sure she is unlikely to have capacity so you doubt that she could have been aware of what she was doing. Should you intervene, and if so, how?
Dr Helen Cotton: Refer to the adult safeguarding team
This is a safeguarding issue. The patient concerned is a vulnerable adult, lives alone and has severe dementia. There is a possibility that she has been subject to financial abuse if her son has ‘got her to change her will’. Her GP has a duty of care to recognise possible abuse and to take action. The 2014 Care Act provides guidance on this.
How to intervene is more complicated. Factors that need consideration are consent to share information, confidentiality to the son and the doctor-patient relationship. Keeping good records is essential.
You should discuss this with your colleagues and defence organisation.
You need to see the patient. Although she has severe dementia, capacity is situation dependent. Advise her that you are concerned and are referring to social services. If on assessment she lacks capacity, the possibility of elder abuse means a best-interests decision mandates action. If she has capacity, but refuses consent you’ll need to decide whether to make a referral without her consent. This requires balancing the risk from abuse with her right to decide how to live.
A discussion with the son is also a good idea. If the son is a patient, his confidentiality may be breached as there is a potential criminal act and possible elder abuse. Advise him of your concerns. Then make a referral to the adult safeguarding team.
Dr Helen Cotton is a GP in Yeovil, Somerset
Dr Rachel Birch: Assess whether the patient has testamentary capacity
You have a duty of care to your patients and to act in their best interests when they lack capacity. You should see the patient to assess her mental capacity to consent to investigations or treatment. Assessment of capacity is decision specific and involves assessing understanding, evaluation, retention of information and the ability to communicate. These elements should be documented. If the assessment is not so straightforward, or where there may be mental health issues, dementia or learning difficulties, you may seek a second opinion.
If she has mental capacity, you should then assess her testamentary capacity, the capacity to write or change a will, using the Banks v Goodfellow criteria. If she does not have capacity to consent to this assessment, it can be assumed she also doesn’t have testamentary capacity, which requires the patient to understand the nature of a will, to know the extent of their property, and how the distribution of that may affect others, and that the will may be challenged. You should also be clear that there is no mental affectation that could distort decision-making and the patient’s decision should not influenced by others. The assessment should usually be carried out with only the patient.
If the patient does have mental and testamentary capacity you may still want to talk about her welfare and relationship with her son. If in your opinion she lacks capacity you should take steps to safeguard her. You may also want to contact the solicitor involved with the will to express your concern. Document the assessment in case there is scrutiny of the decision later.
Dr Rachel Birch is a medicolegal adviser at the Medical Protection Society
Dr Matt Piccaver: Inform the solicitor if there are concerns
You will need to assess whether the patient has testamentary capacity, the ability to make a will. As with all capacity decisions, it is question specific. Does this patient have the capacity to make a will at that present moment? If not, the solicitor would need to be informed. This takes the decision out of your hands. If you feel the older person is vulnerable, you are in a position to ask for social services’ safeguarding help.
If the will was potentially changed under duress or external influence, the patient could be a victim of financial abuse, and may need to be discussed with your local safeguarding team. You would need to consider whether to break confidentiality; if you do, only disclose exactly what is needed, rather than the patient’s full medical record. Our county council (Suffolk) has a duty to make enquiries in several areas, including if ‘there is a suspicion abuse or neglect has occurred or is likely to’, which could apply in this case if you have strong enough concerns.
I would also advise getting official guidance from your defence organisation and safeguarding teams.
Dr Matt Piccaver is a GP in Glemsford, Suffolk