I am a strong be­liev­er of cross­ing your t’s and dot­ting your i’s, but I do know a lot of peo­ple who pre­fer to use every short­cut imag­in­able. There are times when I agree that per­haps a short­cut may come in handy but when it comes to busi­ness, short­cuts can be­come prob­lem­at­ic.

The sad truth is that many of us suf­fer from short-term vi­sion, so that, in con­duct­ing busi­ness we think most times of to­day and to­mor­row and refuse to see be­yond that, so to many, the short­cuts are time and mon­ey sav­ing mech­a­nisms. Why waste a wor­ry on the long-term ef­fects? In in­stances con­cern­ing busi­ness or le­gal ram­i­fi­ca­tions we should al­ways con­sid­er long-term ef­fects.

There are sev­er­al trans­ac­tions par­tic­u­lar­ly the prepa­ra­tion of wills or deeds, that when con­duct­ing busi­ness with my el­der­ly clients I re­quire a med­ical re­port/cer­tifi­cate at­test­ing to my client’s men­tal ca­pac­i­ty. To be clear, no such doc­u­ment is re­quired by law. How­ev­er, it is part of the cross­ing your t’s and dot­ting your i’s ap­proach.

Af­ter I ex­plain my rea­sons for re­quir­ing the doc­u­ments, most clients are hap­py to oblige and would make arrange­ments to vis­it their doc­tors and se­cure the med­ical. Un­for­tu­nate­ly, I have met sev­er­al, who de­spite agree­ing with me, have had their chil­dren (who ac­com­pa­nied them to these con­fer­ences) refuse as they want doc­u­ments to be im­me­di­ate­ly pre­pared and signed. Their ur­gency usu­al­ly means that se­cur­ing a med­ical feels too oner­ous and they would opt to vis­it an­oth­er of­fice or com­mis­sion­er of af­fi­davit who would not stip­u­late any such re­quire­ment.

In prepar­ing le­gal doc­u­ments it is nec­es­sary to have prop­er men­tal ca­pac­i­ty., In fact, the Wills and Pro­bate Act stip­u­lates the need for tes­ta­men­tary ca­pac­i­ty for the va­lid­i­ty of a will. De­men­tia and Alzheimers are be­com­ing a grow­ing con­cern, and, these dis­eases are not on­ly prone in el­der­ly peo­ple but there have been in­stances of ear­ly on­set.

Aside from these, there are per­sons who have suf­fered strokes or oth­er ail­ments which have im­paired their abil­i­ty to give le­gal in­struc­tions to an at­tor­ney at law. Doc­u­ments which are ex­e­cut­ed by per­sons who do not have men­tal ca­pac­i­ty will usu­al­ly be set aside by the Court or deemed to be void.

In most in­stances, chil­dren who ac­com­pa­ny par­ents or el­der­ly rel­a­tives to le­gal con­fer­ences de­bate the need for a med­ical. The ar­gu­ment would usu­al­ly be that no one will at­tempt to chal­lenge any will or deed pre­pared, or, every­one al­ready get their share so they wouldn’t in­ter­fere with oth­ers get­ting their share now, or, our fam­i­ly wouldn’t fight and ar­gue over land and mon­ey. I think, my favourite line, is the one about our fam­i­ly usu­al­ly be­ing above any dis­pute or ar­gu­ment over land and mon­ey.

Rest as­sured, dur­ing the par­ents’ life­time most fam­i­lies are above such dra­ma, but, some in­vis­i­ble re­set but­ton is pro­grammed when the ma­tri­arch or pa­tri­arch of the home dies. Up­on the death of the par­ent, fam­i­lies tum­ble in­to dis­pute when they be­come un­hap­py or dis­en­chant­ed with the man­ner in which as­sets were shared, dis­trib­uted or be­queathed.

There are in­stances where some chil­dren learn for the first time that prop­er­ties were gift­ed, un­be­known to them, dur­ing their par­ents’ life­time to oth­er sib­lings and this can lead to con­flict. In oth­er in­stances, a will can be slant­ed heav­i­ly in favour of one child ver­sus the oth­ers which would al­so lead to con­flict. And, as it of­ten hap­pens, the child with whom the par­ents spent their last few years could have been the one who ben­e­fit­ed sig­nif­i­cant­ly more and that would al­so lead to con­flict.

There are var­i­ous man­ners in which these con­flicts reach the doors of the court. Chil­dren would make var­i­ous al­le­ga­tions that their par­ents had been di­ag­nosed with de­men­tia or had been dis­play­ing signs of mem­o­ry loss.

Oth­ers may claim that one child had un­due in­flu­ence over the par­ents or that the par­ent signed doc­u­ments un­der duress. Some chil­dren may even go the ex­tra mile of al­leg­ing that there was fraud in­volved in the prepa­ra­tion of le­gal doc­u­ments.

Al­le­ga­tions are such that there have been cas­es in which at­tor­neys at law have been sum­moned to give ev­i­dence on the in­struc­tions giv­en by par­ents in prepar­ing doc­u­ments and have even been ques­tioned on what steps were tak­en to en­sure that the par­ent had the req­ui­site men­tal ca­pac­i­ty.

So, to en­sure that trans­ac­tions are done prop­er­ly and all t’s are crossed, at­tor­neys at law may re­quire a med­ical cer­tifi­cate af­ter hav­ing con­ver­sa­tions with el­der­ly clients. When prepar­ing wills or even trans­fer­ring prop­er­ty some at­tor­neys may opt to speak to their clients with­out their chil­dren or whoso­ev­er has ac­com­pa­nied them to the ap­point­ment. This is not meant to side­line any­one, but to en­sure that the at­tor­ney at law can speak pri­vate­ly to their el­der­ly client, take full in­struc­tions, as­cer­tain their true wish­es and in­ten­tion and most im­por­tant­ly en­sure that they client may not be un­der some un­due in­flu­ence or duress. These lit­tle de­tails be­come vi­tal should there be a chal­lenge which aris­es af­ter the el­der­ly client’s death.

Pavi­t­ra Ramharack is Head of Cham­bers at Pavi­t­ra Ramharack At­tor­neys at Law and can be reached at nramharack_pavi­t­ra@out­look.com