MDO issues warning after judge criticises GP in legal battle over war veteran's will
Heather Saxena, medical reporter, Australian Doctor Group.
Wednesday, 13 July 2022
This article was originally published on the AusDoc. website on 29 June 2022.
The GP failed to establish that the 97-year-old fully understood the ramifications of leaving his house to a hairdresser, the Supreme Court of Victoria says.
A medical defence organisation has warned GPs that assessing a patient's capacity to change their will is not the same as assessing capacity to consent to treatment following a legal battle over the will of a WWII veteran.
Norman Maddock, 97, left his $1 million house to a hairdresser who had been his friend for 20 years and only $300,000 to his wife, who had dementia and lived in an aged care home.
As a result, the trustee for the wife, who died this year, challenged the legality of the will in the Supreme Court of Victoria.
Mr Maddock's GP told the court that he had treated him for two years and performed a mini mental state examination 10 days before the will was executed in January 2020.
He said that Mr Maddock scored 24 out of 30, indicating he had only mild cognitive impairment.
But the court said the GP failed to adequately consider Mr Maddock’s 18-year history of cerebrovascular disease and history of paranoid ideation, including an incident where he wielded a knife and threatened to harm his neighbours in January 2019.
“Due to a number of limitations, the affidavit as to testamentary capacity from [the GP] on its own is insufficient to satisfy the court that the deceased had testamentary capacity at the time of signing the will,” Judge Kate McMillan said in her ruling.
The court heard that Mr Maddock left his house to the hairdresser, who was also the sole executor, because she was like his daughter.
The GP testified he had originally assessed Mr Maddock as competent in December 2019 following a stroke.
After the mini mental state examination just over a month later, he said Mr Maddock had displayed a "good knowledge of his assets and to whom he would like to leave them, noting that the deceased specifically stated that he did not wish to leave anything to his children”.
A neuropsychologist reviewed the GP’s medical records and the patient’s hospital notes and said the patient had been experiencing paranoid ideation, cognitive difficulties and low mood 16 months before the assessment.
After the threat to his neighbours in January 2019, he was diagnosed with a psychotic disorder that could not be treated with medication because of his frailty.
He had scored well on a mental state exam at the time but this belied his poor judgement, the neuropsychologist said.
According to the judge, the GP did not appear to have considered how this recent medical history, including the stroke, might affect Mr Maddock's capacity.
“The deceased’s treating doctor ... would or should have been aware of the deceased’s significant health issues, including bouts of depression, history of paranoid delusions and reduced cognitive abilities,” the judge said.
She also criticised the lawyer who executed the will, saying he should have been “more suspicious” of the hairdresser who stood to benefit
"[She] appeared to be heavily involved with the deceased in circumstances where the deceased was likely to be vulnerable or impressionable as a result of his circumstances and became dependent on her,” the judge said.
“She held the deceased’s power of attorney, was a witness to the 2019 will [and] was present with her partner at the signing of the 2020 will.
“Although not required to be determined, the evidence suggests that [she] was pushing the outcome of being given the property by the deceased."
Avant told Australian Doctor that GPs certifying testamentary capacity needed to specifically ensure the patient understood the potential for their will to be challenged in court.
“[Testamentary capacity] is different from the capacity to consent to treatment and requires specific consideration,” said Georgie Haysom, Avant’s general manager of advocacy, education and research.
“A person will have testamentary capacity if they understand the nature of what they are doing and the extent of the property they are dealing with and is aware of the claims that may be made on their estate, for example, by children and other relatives.
“A doctor certifying a patient has testamentary capacity is certifying that the patient understands these things.
“If a doctor does not believe they have the skill and experience in assessing a patient’s testamentary capacity, they should refer the patient to an appropriately qualified specialist.”
More information: Supreme Court of Victoria findings; 2 Jun 2022.