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Establishing whether someone is legally competent: how does it work?

reading time 5 minutes published on 15 June 2021

The term ‘legally competent’ indicates whether someone is capable of making certain decisions for themselves and in fact refers to the right to self-determination that someone has. In several places in Dutch law, the counterpart of this term, ‘legally incompetent’ occurs.

The question whether someone is legally competent or incapable is often used in relation to medical decisions. But the term also plays an important role with regard to legal decisions. For example, when drafting or amending a will, the notary must test whether the person sitting in front of him/her is capable of overseeing choices regarding the content of the will he/she wants.

More specifically, it is the responsibility of the notary to test and assess whether the will of the person who wishes to make a will is directed to the legal consequences of the will and, if so, whether that person is able to oversee the legal consequences of the will.

If a notary despite a legal incompetency passes a notarial instrument such as a will, it is void under the law. This means that this deed is deemed never to have been legally created.

It may be that the notary is in doubt as to whether the person sitting in front of him is legally competent. When in doubt, the notary often uses the Step-by-Step Plan for the Assessment of Legal Competence. This step-by-step plan was drawn up by the Royal Notarial Association in collaboration with Alzheimer Nederland, the Association of Indicating and Advising Physicians (VIA) and the Association of Estate Planners in the Notary Profession (EPN).

 Indicators of doubt may include:
- The advanced age of the person drafting or amending a will;
- The existence of an administration over his/her assets;
- The fact that he/she no longer does his/her administration him/herself;- The fact that he/she no longer lives independently;
- The fact that he/she lives in a care institution;
- The fact that someone has Alzheimer’s, is mentally handicapped, is depressed or if there is any other medical indication;
- The fact that someone regularly requests that their will be amended;
- The fact that someone else makes the request to the notary to draft or amend the will.

Testing the decision-making skills by the notary

The notary must also test the decision-making skills of the person concerned. This means that the civil-law notary verifies whether the person making or amending the will is able to clearly articulate his/her choice, understands the information provided to him/her and is able to oversee what this means in his/her specific situation.

If the notary is of the opinion that the person in question does not understand the above, he/she is obliged to refuse service and the will cannot be passed.

The use of a so called ‘VIA doctor’ by the notary

It may be that the notary concerned has doubts about the legal capacity of the person who wishes to amend his/her will. After all, a person can also be incapable of making certain decisions, while being able to oversee and understand other decisions. In the case of dementia, for example, there is often a grey area over a long period of time in which a person is or is not ‘clear’ at various times. This makes it all the more difficult for a notary to assess the situation correctly.

Because a notary public is not a physician, they have the option of using an independent physician. The VIA has a register of doctors who are trained to determine the legal capacity with regard to notarial deeds. This can even be done retroactively if the doctor can visit the person who signed the notarial deed or if sufficient information is available to objectively determine the legal capacity (in retrospect).

Is a statement from the general practitioner also possible?

With a statement from a VIA doctor, the notary can ensure that he/she has been provided with advice by an independent expert doctor about the medical condition and, by extension, the effect of that condition on the capacity to will.

According to the doctors’ organization KMG, the general practitioner of an affected person cannot issue such a statement giving an opinion on a patient’s fitness/disability to do or not to do certain things. Reason for this is, among others, that a person’s general practitioner should concentrate on the treatment and trust relationship with the person concerned. Otherwise there could be a risk of conflict of interest. To prevent this, it was decided to draw a line between treatment of a patient and the assessment of whether that patient is legally competent.

Who determines willfulness?

Any VIA doctor who is called in is not the one who determines whether the person in question is still competent to will. It is the notary who, partly on the basis of the VIA doctor’s medical certificate, must assess whether the person in question is capable - in short - of overseeing the consequences of the will. The civil-law notary when drawing up or amending a will must thus give the answer to the question of whether someone should be considered legally competent.

If you have a family member or relative who you know is considering amending his/her will and you have doubts about his/her legal capacity, it is advisable to inform the notary concerned. Be as specific as possible about why you have doubts about the person’s legal capacity. This can help the notary with his/her assessment.

Personalized advice

Inheritance law issues in combination with the question of the (lack of) legal capacity of a (future) testator can be complex. If you need consultation and/or personal advice, I will be happy to assist you.

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