Communicating the decision

This aspect of the 2 stage test is often not as simple as getting the person to just tell you what they can remember or understand. Even when someone’s ability to communicate is severely restricted, you have to be prepared to take the time to understand how they communicate and use it appropriately.

When I talk with health care professionals and other assessors of mental capacity, the general consensus is that this aspect of the 2 stage test is the easiest to satisfy. I have to say that experience has taught me otherwise. It is often not as simple as getting the person to just tell you what they can remember or understand. If you have ever assessed someone in the latter stages of Huntingdon’s then you will know that their ability to communicate is severely restricted but this does not mean they cannot communicate, it just means that you have to be prepared to take the time to understand how they communicate and use it appropriately.

I mentioned in an earlier email that sometimes it is appropriate to incorporate closed questions in an attempt to gain an insight into a persons’ level of understanding. Allow me to expand on that now as I look further at the steps you might need to take when supporting an individual to communicate with you.

Case Study

I was asked to assess a young lady in relation to her ability to make a Will. She had been starved of oxygen at birth and was only able to communicate using her eyes to indicate ‘Yes’ or ‘No’. She would look up for ‘Yes’ and down for ‘No’. It was further complicated by the fact that she didn’t always have full control over her eye muscles and so would sometimes struggle to indicate her intended answer.

When considering how I would attempt to support her to communicate with me her understanding of information relating the a Will, it was obvious that I would not be able to use open questions and instead would have to use closed questions as she could only communicate two outcomes. As such, I arrived at the decision to use options based questions. I would ask her a question such as ‘What is a Will?’ and then give her a series of options and, one by one let her indicate whether she thought that option was the correct answer to the question. So for example, ‘What is a will? Is it about appointing someone to manage your property and financial affairs whilst you are still alive?’ (wait for response) ‘Is it about deciding where you live?’ (wait for response) ‘Is it about leaving your belongings to someone when you die?’ (wait for response).

However, before I even got to that stage I had to see if I was able to understand her sufficiently enough to be able to understand her responses. In order to do that I spent time with the young lady and her mother asking closed questions such as ‘Is your name X?’, ‘Do you know who this person next to me is?’, ‘Is it your brother?’, ‘Your sister?’ and so on. I then used this to gauge my understanding of her responses and checked this with the mother who was able to understand her daughter’s communication very well. After about half an hour both myself and the mother were happy that I was able to accurately interpret the young lady’s eye movements and the mother subsequently left us alone. In case you’re wondering, I felt I couldn’t have the mother in the assessment just in case there was any undue influence or pressure in relation to her being named as a beneficiary.

I then began asking the lady a series of ‘option-type’ questions, which went well until it came time to identify who she wished to nominate as her beneficiaries. Now, you need to know that she had a total of 7 brothers and sisters (including step brothers and sisters). How was I to support her to identify individual’s without leading her in any way?

The way I solved this problem was like this. Prior to the assessment, I had asked the parents to gather photographs of each of the individual children and I went through one by one. I held up the photograph and asked ‘Do you recognise this individual?’ (pause) ‘Are they your brother?’ (pause) ‘Sister?’ (pause) ‘Father?’. ‘Is his name Colin?’ (pause) ‘Susan?’ (pause) ‘Brian?’ ‘Do you want to leave him anything in your Will?’ And so, using this technique I went through every member of the family. Once I had finished with the family, I asked if she wished to name anyone else as a beneficiary. Now, between you and me, I was dreading her indicating ‘Yes’ and to my relief she indicated ‘No’. If she had indicated ‘Yes’ I was prepared to go through the alphabet letter by letter until I got a name.


This example is by no means unique and when working with individuals’ with some form of reduced cognitive ability, communication can be very complex. As with the other elements of the test, it will require you to carefully plan how you are going to support the individual to communicate effectively and don’t forget that this may mean the assessment will take longer to conduct than you originally anticipated.

Today's Wills and Probate