Capacity to Act as an Executor
The role of an executor is complex and often assigned to an individual when they are in good health. However, if the individual experiences a deterioration in their cognitive abilities, they may no longer be able to undertake the duties assigned to that role.
Where a person’s ability to act as an executor is in question, we can assess their mental capacity to carry out this role. We can also complete the PA14 medical certificate when a person is found to lack capacity.
What is the legal test used for a Mental Capacity Assessment to act as an Executor?
An assessment of capacity to act as an executor always uses the Mental Capacity Act (2005) two stage test of capacity to determine whether a person lacks capacity to make the decision in question.
In order to satisfy this test, a cognitive impairment must be present (this is the diagnostic test) and the person will be assessed as to whether they are able to understand, retain, and use and weigh information specific to the decision being made (this is known as the functional test).
A Causative Nexus must be established, that is to say, there must be a link between the functional test and the diagnostic test in order for a person to be assessed as lacking capacity for a specific decision.
In order to complete a thorough assessment, we will need confirmation of any diagnosis or impairment that might affect the person’s ability to act as an executor. We will also need a copy of the Will and an overview of the estate that they are appointed to deal with. information will be kept strictly confidential and used to develop questions for the assessment and to verify the answers given.
The assessment can take place either by video link or face to face depending on your location. We will be guided by you as to the best time to assess and whether you need a supporting person in the assessment. We will also take into consideration any communication needs and adapt the assessment accordingly. The assessment will take the format of a conversation rather than it being a formal test.
Acting as Executor Frequently Asked Questions
What is a Capacity to Act as an Executor?
Capacity to act as an executor means having the mental capacity, or ability to make decisions, about the estate of someone that has died.
What is a PA14 probate form?
The PA14 form is used to report that an executor/administrator has lost the mental capacity to manage the property and affairs of the deceased’s estate.
Who can complete a PA14 probate form?
Only medical professionals can complete this form. Eligible medical professionals are:
a registered medical practitioner (for example the patient’s GP)
a registered psychiatrist
a registered approved mental health professional
a registered social worker
a registered psychologist
a state registered nurse
a state registered mental nurse
a registered occupational therapist
How long does a Capacity to Act as an Executor Assessment take?
This assessment would take on average between 45 – 90 minutes, depending on the level of support the person being assessed needs and the complexity of the case. We also conduct assessments via video link.
What is involved in a Capacity to Act as Executor Assessment?
When someone is assessed regarding their mental capacity to act as an executor, they are assessed against the criteria for mental capacity as set out by the Mental Capacity Act and associated guidance (2005). This states that for someone to have the mental capacity to be an executor they have to demonstrate that they can understand, retain, weigh and communicate the relevant information around being an executor. The relevant information is set by the person assessing, but there will be general consensus on what the relevant information would be, for example, understanding the role of an executor, understanding the nature and purpose of a Will, understanding what probate is.
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