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Dementia And The Benefits Of A Lasting Power of Attorney

BY: Paul / 0 COMMENTS / CATEGORIES: News


What is an Lasting Power of Attorney (LPA)?
An LPA covers decisions about your financial affairs, or your health and care. It comes in effect if you lose mental capacity, or if you no longer want to make decisions for yourself.
You would set up an LPA if you want to make sure you’re covered in the future.
There are two types of LPA:
LPA for financial decisions
LPA for health and care decisions.
An LPA for financial decisions can be used while you still have mental capacity or you can state that you only want it to come into force if you lose capacity.
An LPA for financial decisions can cover things such as:
Buying and selling property
Paying the mortgage
Investing money
Paying bills
Arranging repairs to a property
An LPA for health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:
Where you should live
Your medical care
What you should eat
Who you should have contact with
What kind of social activities you should take part in
Unfortunately, many people diagnosed with dementia will eventually reach a point when they can no longer make decisions for themselves. When a person lacks ‘mental capacity’, it’s common for someone else, for instance a family member, to make decisions on their behalf.
Who can make an LPA?
Anyone who is over the age of 18 and has the mental capacity to do so can make an LPA. Once a person has lost mental capacity, they will not be able to appoint an LPA.
Why would someone need an LPA?
For a person with a diagnosis of dementia, there may come a time when they are unable to make decisions about their care and their finances. A lasting power of attorney is a legal document appointing one, or more, trusted people to be their attorney(s). An attorney is a person responsible for making decisions on the person’s behalf.

People in a civil partnership or marriage might assume their partner can deal with their finances and make decisions about their healthcare should they lose the ability to do so, but this is not necessarily the case. If someone has not drawn up an LPA when they are assessed to have lost capacity, and their partner or friend wants to make decisions on their behalf, they may have to apply to the Court of Protection to be appointed as the person’s Deputy. This can be a long, complex and expensive process.
Making the right choice
If you’re considering making a LPA, here are five reasons why it might be a good move for you and your family and friends.
Choice
You can choose people you trust to manage your affairs and to make decisions on your behalf, should you become unable to do so. You can choose who acts for you and how they make decisions.
Legality
A Lasting Power of Attorney is a legal document which authorises your specified people to make decisions on your behalf. If you provide your bank cards to trusted friends or relatives, any permission you have given to them will be automatically revoked if you lose capacity in which case, they are technically committing fraud.
Control
It is important to note that you do not lose any control by making an LPA. Indeed, a properly drafted LPA can contain details of your wishes and instructions for your Attorneys to follow, allowing you to retain control even after incapacity.
Reassurance
If you’re unable to make a decision for yourself in the future, the person you choose will be able to make decisions for you, rather than a stranger or someone you do not trust.
Plan Ahead
Making an LPA helps start conversations with your family about what you want to happen in the future.
Other ways an LPA is beneficial
An LPA isn’t just put in place due to mental illnesses, it’s also very important to have as a security for anything sudden that can happen. “It will never happen to me”, is what a lot of us think. But sadly, accidents do happen all of a sudden and out of the blue. And in a heartbeat, lives can be turned upside down.
In the UK, every 90 seconds someone is admitted into hospital with a brain injury, whether it be from an accident or contact sport being examples of what can go wrong.
If such a life situation was to happen and an LPA wasn’t a document you have, then family or friends wouldn’t be able to assist or take control of finances or welfare decisions. You would have to apply to the Court of Protection to grant you permission which is a costly and lengthy process.
To apply to become a deputy there’s a fee of £365 that you are required to send with your application. If the court decides that your case needs a hearing then there’s an additional charge of £485. These payments are only the start of charges that will be occurred should you need to apply to the Court of Protection.
Having an LPA not only eliminates occurring the charges and the stress, it also comes into place instantly. Once the LPA is submitted, it takes up to ten weeks to register. The power will be effective as soon as the LPA is registered, so the attorney will be able to start making decisions straight away, unless they specify otherwise on the application. When applying to the Court of Protection, the court aim to issue an order within 21 weeks of the application being stamped. It can take 5-6 weeks to get to this point, depending upon how long the initial steps take. Please note, an LPA must be put in place BEFORE the person loses their mental capacity.
Summary
You probably wouldn’t want to die without a will in place, especially if you own property, have substantial cash savings, or have a partner or dependants. But what if something happens to you that does not kill you, but leaves you incapable of communicating your wishes to those closest to you.
It’s an uncomfortable thought but it’s crucial to consider it in good health and make the sensible decision. An LPA is probably the single best way to make sure that your interests are protected from the moment you are incapacitated until your death, after which your will can distribute your estate in the usual way.

by Bhupinder Mann, Associate at Balfort LegalSep 23, 2019

 

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Why Establishing Testamentry Capacity is not a Tick Box Exercise

BY: Paul / 0 COMMENTS / CATEGORIES: Power of Attorney

Why Establishing Testamentary Capacity Is Not a Tick-Box Exercise

One of the many challenges for legal practitioners specialising in Will drafting is establishing the testamentary capacity of the Testator. While in some cases, the presence or absence of sufficient mental capacity may be clear, in others, there may be some uncertainty, necessitating a more comprehensive process to reach a consensus. In the case of James v James [2018] EWHC 43 (Ch); [2018] C.O.P.L.R. 147; [2018] 1 WLUK 252 (Ch D (Bristol)) the High Court was asked to make a ruling on a challenge to a Will based on lack of testamentary capacity, and also outline the factors law practitioners should consider when making a capacity assessment at the time of Will drafting.
James v James (2018)
James v James involved the Will of a man who died in August 2012 at the age of 81. The Testator had been a successful businessman with a farming and haulage operation in Dorset. He had been reluctant to make commitments to his family regarding his inheritance until later in his life after his cognitive wellbeing had been in decline for some time.
The Claimant, S, was one of the Testators three children. In 2007, some of the plots of land owned by the Testator were transferred to one of his daughters, and after the family farming partnership was dissolved, the claimant received a farm, £200,000, the haulage business, vehicles, and a license to use one of the plots, ‘Pennymore’ from which to operate the haulage business. S, however, had been led to believe he would inherit ‘Pennymore’, leading him to challenge the Will on the grounds of his father’s lack of testamentary capacity.
It was stated that the Testator had not been “as formidable as he had once been” from approximately 2004 and had been diagnosed with “moderate dementia with frontal lobe impairment” in 2011. The Will had been signed in September 2010, hence close to the time at which the Claimant had been assessed as unable to make decisions “about his health care, where he lives or his finances”. The High Court held that the common law test for assessing retrospective capacity should be the one set out in Banks v Goodfellow (1870) (Banks), rather than the statutory test set out in the Mental Capacity Act 2005. Applying Banks, the Testator, should have understood:
the nature of entering into the will and its effect;
the extent of the property of which he was disposing; and
claims to which he ought to give effect
In addition, Banks requires the Testator have “no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will”.
The Court held the Testator did have the capacity to enter into the Will.
This case is significant as it underpins the continued importance of Banks as the sole test for judging Will-making capacity in retrospect, and despite being a case from 1870, has not been superseded by the more recent Mental Capacity Act 2005, which contains a new legal provision for the assessment of mental capacity.
Assessing testamentary capacity at the time of Will writing
The importance of verifying the mental capacity of a Testator should never be underestimated. Ultimately, by undertaking this process in a clear and concise manner, contentious probate can be avoided, saving cost, time, and familial discord on behalf of clients and their beneficiaries in the future.
As we established above, the Banks test requires the Testator to understand the Will itself, the extent of their assets and the claims upon them. In addition, a law practitioner can further assess testamentary capacity in several ways:
If the Testator is elderly or infirm at the time of Will writing, the following steps should be considered:
Obtain contemporaneous medical opinion confirming testamentary capacity
Asking a medical practitioner to witness the Will
In the absence of medical opinion, explain to the Testator that this may heighten the possibility of their Will being challenged successfully on the grounds of lack of testamentary capacity. Ensure they confirm they wish to proceed and make clear notes of the guidance provided and the decisions made by the Testator and attach these records to the file.
If a medical opinion is needed, it is important to request the assistance of a health practitioner with the skills to assess capacity, to avoid the risk of their competence to make this assessment being questioned in a later claim. The client’s GP may therefore not be the best person to make the assessment. It is also essential that the time between the medical opinion being received and the Will being signed be minimised, to avoid any suggestion that mental capacity declined in the intervening period. When instructing the medical expert, subject to your client’s consent, it is also recommended to provide a summary of their proposed testamentary wishes.
If there is uncertainty regarding the mental capacity of your client (i.e. you have doubts but cannot be sure), it may not be in the best interests of the client to draft the Will. Should your client still wish to proceed in light of the risks that the Will may be later deemed invalid, you should record all of the grounds for doubting capacity, that this has been explained to your client, and the reasons they still wish to proceed.
In summary
Given the rise in Will disputes, it is even more essential that law practitioners specialising in Will drafting make no assumptions regarding the cognitive capacity of clients. Proving testamentary capacity is more than a tick-box exercise; rather it is one that requires that Solicitors and Will writers take the time to get to know their clients and to notice the subtle signs that their capacity may be diminished. By being open and transparent about the importance of this aspect of ensuring Will validity, you can ask questions and seek further information to help you make a determination. And don’t assume only those in their later years may lack testamentary capacity. A client who has suffered a head injury, perhaps as a result of a road traffic accident, or fall, may appear young, physically well, and alert, but maybe suffering impaired cognition (e.g. memory or logical reasoning). By broadening our view of what impaired mental capacity looks like, we can ensure the validity of the Wills we draft is not questioned at a later date.

by TWP Main AdminSep 12, 2019

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Why Establishing Testamentary Capacity Is Not a Tick-Box Exercise

BY: Paul / 0 COMMENTS / CATEGORIES: News

One of the many challenges for legal practitioners specialising in Will drafting is establishing the testamentary capacity of the Testator.  While in some cases, the presence or absence of sufficient mental capacity may be clear, in others, there may be some uncertainty, necessitating a more comprehensive process to reach a consensus.  In the case of James v James [2018] EWHC 43 (Ch); [2018] C.O.P.L.R. 147; [2018] 1 WLUK 252 (Ch D (Bristol)) the High Court was asked to make a ruling on a challenge to a Will based on lack of testamentary capacity, and also outline the factors law practitioners should consider when making a capacity assessment at the time of Will drafting.

James v James (2018)

James v James involved the Will of a man who died in August 2012 at the age of 81.  The Testator had been a successful businessman with a farming and haulage operation in Dorset.  He had been reluctant to make commitments to his family regarding his inheritance until later in his life after his cognitive wellbeing had been in decline for some time.

The Claimant, S, was one of the Testators three children.  In 2007, some of the plots of land owned by the Testator were transferred to one of his daughters, and after the family farming partnership was dissolved, the claimant received a farm, £200,000, the haulage business, vehicles, and a license to use one of the plots, ‘Pennymore’ from which to operate the haulage business.  S, however, had been led to believe he would inherit ‘Pennymore’, leading him to challenge the Will on the grounds of his father’s lack of testamentary capacity.

It was stated that the Testator had not been “as formidable as he had once been” from approximately 2004 and had been diagnosed with “moderate dementia with frontal lobe impairment” in 2011.  The Will had been signed in September 2010, hence close to the time at which the Claimant had been assessed as unable to make decisions “about his health care, where he lives or his finances”.  The High Court held that the common law test for assessing retrospective capacity should be the one set out in Banks v Goodfellow (1870) (Banks), rather than the statutory test set out in the Mental Capacity Act 2005.  Applying Banks, the Testator, should have understood:

  • the nature of entering into the will and its effect;
  • the extent of the property of which he was disposing; and
  • claims to which he ought to give effect

In addition, Banks requires the Testator have “no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will”.

The Court held the Testator did have the capacity to enter into the Will.

This case is significant as it underpins the continued importance of Banks as the sole test for judging Will-making capacity in retrospect, and despite being a case from 1870, has not been superseded by the more recent Mental Capacity Act 2005, which contains a new legal provision for the assessment of mental capacity.

Assessing testamentary capacity at the time of Will writing

The importance of verifying the mental capacity of a Testator should never be underestimated.  Ultimately, by undertaking this process in a clear and concise manner, contentious probate can be avoided, saving cost, time, and familial discord on behalf of clients and their beneficiaries in the future.

As we established above, the Banks test requires the Testator to understand the Will itself, the extent of their assets and the claims upon them.  In addition, a law practitioner can further assess testamentary capacity in several ways:

If the Testator is elderly or infirm at the time of Will writing, the following steps should be considered:

  • Obtain contemporaneous medical opinion confirming testamentary capacity
  • Asking a medical practitioner to witness the Will
  • In the absence of medical opinion, explain to the Testator that this may heighten the possibility of their Will being challenged successfully on the grounds of lack of testamentary capacity. Ensure they confirm they wish to proceed and make clear notes of the guidance provided and the decisions made by the Testator and attach these records to the file.

If a medical opinion is needed, it is important to request the assistance of a health practitioner with the skills to assess capacity, to avoid the risk of their competence to make this assessment being questioned in a later claim.  The client’s GP may therefore not be the best person to make the assessment.  It is also essential that the time between the medical opinion being received and the Will being signed be minimised, to avoid any suggestion that mental capacity declined in the intervening period.  When instructing the medical expert, subject to your client’s consent, it is also recommended to provide a summary of their proposed testamentary wishes.

If there is uncertainty regarding the mental capacity of your client (i.e. you have doubts but cannot be sure), it may not be in the best interests of the client to draft the Will.  Should your client still wish to proceed in light of the risks that the Will may be later deemed invalid, you should record all of the grounds for doubting capacity, that this has been explained to your client, and the reasons they still wish to proceed.

In summary

Given the rise in Will disputes, it is even more essential that law practitioners specialising in Will drafting make no assumptions regarding the cognitive capacity of clients.  Proving testamentary capacity is more than a tick-box exercise; rather it is one that requires that Solicitors and Will writers take the time to get to know their clients and to notice the subtle signs that their capacity may be diminished.  By being open and transparent about the importance of this aspect of ensuring Will validity, you can ask questions and seek further information to help you make a determination.  And don’t assume only those in their later years may lack testamentary capacity.  A client who has suffered a head injury, perhaps as a result of a road traffic accident, or fall, may appear young, physically well, and alert, but maybe suffering impaired cognition (e.g. memory or logical reasoning).  By broadening our view of what impaired mental capacity looks like, we can ensure the validity of the Wills we draft is not questioned at a later date.

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Forfeiture Rule Modified In Assisted Suicide Case

BY: Paul / 0 COMMENTS / CATEGORIES: News

Are we ‘living’ longer or merely being kept alive well beyond our individual natural expiry date?

As modern medicine continues to improve, death and old age is rapidly becoming viewed as almost an act of personal negligence.  The medical profession and those struck down with illness are encouraged to ‘keep fighting’, sometimes long after disease has already won the battle and all that is left is a living corpse, denied the dignity and peace of death.

In a sensitive and poignant article by Katy Butler, the agony of prolonging death is laid bare:

“My father Jeffrey—a retired Wesleyan University professor who’d tossed me laughing into the air when I was a baby and taught me to read when I was four—had suffered a devastating stroke at the age of 79. A year later, to correct a slow heartbeat, he’d been casually outfitted with a pacemaker that kept his heart going until his life became a curse to him rather than a blessing. He’d told my mother, “I’m living too long.”

By the time the hellish summer of 2006 arrived, he was 84 and I’d come to believe that his pacemaker should never have been installed at all. The man I loved more than any other was going blind and falling into dementia. He did not understand the purpose of a dinner napkin and when I visited, I had to coach him to take off his slippers before he tried to put on his shoes. In June, he spent an entire weekend brushing and re-brushing his teeth. In August, he suffered a brain haemorrhage, fell in the driveway, and spent nearly a week in Yale-New Haven hospital, where he suffered a terrible form of cognitive decompensation, often afflicting the elderly, known as “hospital delirium.” When he came home, he asked my brother Michael why the living room was filling up with leaves.”

There is another side to modern life and advancements in access to information; should we be struck down with a degenerative disease, dementia, or a slow-acting but terminal cancer, we are under little illusion of the pain and indignity that lies before us.  For this reason, and because we can be kept ‘existing’ for many years, in a state few would describe as living.  And this has brought the debate of ‘assisted suicide’ to the fore, with each new case which hits the headlines challenging our concepts of morals, death, and the right to control our own lives to the end.

Helping someone die and the rule of forfeiture

The recent case of Ninian v Findlay [2019] EWHC 297 (Ch) provides a small, but significant advancement in the law surrounding assisting a loved one to die.

Section 1 of the Forfeiture Act 1982 states:

The “forfeiture rule”.

(1) In this Act, the “forfeiture rule” means the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing.

(2) References in this Act to a person who has unlawfully killed another include a reference to a person who has unlawfully aided, abetted, counselled or procured the death of that other and references in this Act to unlawful killing shall be interpreted accordingly.

The case concerned a widow of an 80-year-old man who was diagnosed with a progressive, incurable, degenerative disease.  Three years after being diagnosed, he made the decision to end his life through accompanied suicide and contacted the Dignitas clinic in Switzerland.  At the time his wife was unaware of his decision.  When she discovered his plans, she tried to dissuade him, but he was determined.  She convinced him to tell his doctor and to look into palliative care options.  However, she also assisted with much of the administrative aspects of applying to the Dignitas Clinic and made the necessary travel arrangements as he was unable to speak.  And because she loved him, she accompanied him to the clinic.

The widow was never prosecuted for her actions as the police concluded that to take such a step would not be in the public interest.

The widow made an application under section 2 of the Forfeiture Act 1982 to have the forfeiture rule modified or excluded.  Such action could be taken by the Court if it was felt justice demanded it.

Section 2 of the Suicide Act 1961, which provides for the offence of encouraging or assisting suicide, was first considered.  The Court noted that in 2010, substantial amendments had been made to the Suicide Act with the aim to clarify the existing law.

The offence was held to comprise two elements: performing an act capable of encouraging or assisting the suicide (the actus reus) and establishing that the act was intended to encourage or assist the suicide (the mens rea).  It was not necessary that the act actually encouraged or assisted the suicide, only that it was capable of doing so.  Thus, the actus reus was objective, whereas the mens rea was subjective.

It was concluded that the widow had not wanted her husband to go to the Dignitas Clinic.  However, it was her actions that made the trip possible.  Therefore, when viewed objectively, the acts of the widow were capable of assisting suicide, and she had the necessary intent to help her husband end his life, despite her objections.  This meant the elements to constitute an offence under section 2 of the Suicide Act were satisfied.

Once it was established that the forfeiture rule applied, as it did in this case, the Court may have regard to the Claimant’s conduct and material circumstances of the case when deciding whether or not to exercise its discretion.

The Court examined the dissenting decision of Lord Justice Mummery in Dunbar v Plant [1998] Ch. 412, [1997] 7 WLUK 487, whereby the scope of discretion was discussed, and paragraphs 43-45 of a publication issued by the Director of Public Prosecutions entitled “Suicide: Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide“, which set out the factors tending for and against prosecution.  It was decided that although the dissenting opinion in Dunbar was not determinative, the fact the CPS declined to prosecute was a powerful factor in the Court granting relief from forfeiture.

Conclusion

It is safe to say that these types of cases will become more frequent.  Regardless of what the law states, compared to even 10 years ago, people are more educated, wealthier, and have access to the information and means to take matters into their own hands when it comes to the right to die.  Anyone who has loved knows that they would do anything to end their beloved’s suffering.  And if relief from forfeiture is not granted, is it not a final insult to the bravery of the person who has taken matters into their own hands, to refuse to honour their last wishes via their Will?  Or do we need to stand firm, and apply the law rigidly, until Parliament resolves the matter of whether a human being has the right to decide when to die?

What do you think?

  • by TWP Main Admin

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Will A UK Lasting Power Of Attorney Or Deputyship Order Be Recognised Overseas?

BY: Paul / 0 COMMENTS / CATEGORIES: Power of Attorney

With an ageing population, mental capacity is a growing concern for many and Lasting Powers of Attorney (LPAs) can bring peace of mind to those who are worried about how their affairs will be dealt with if they lose mental capacity.

Equally, people owning assets overseas is on the rise, with one in six ‘baby-boomers’ owning a second home, according to a 2018 study by the Institute of Fiscal studies.

So, how do you make sure that your clients’ overseas assets are protected if they lose mental capacity? Is an English LPA or Deputyship Order sufficient?

The simple answer is: probably not!

Sara Janion, Director of Worldwide Lawyers – a UK-based company, which connects UK solicitors and legal practitioners to independent lawyers across the world – and Notary Public of England and Wales, explains:

“A UK Lasting Power of Attorney is highly unlikely to be recognised by foreign courts on its own, without further process.

“For instance, in Spain you would need to obtain a legalised and officially sworn translation of the LPA that it is acceptable under Spanish law. In addition, it’s usually also necessary to get a sworn statement from a lawyer with the appropriate expertise stating that, under English law, the LPA gives the attorneys authority to deal with the assets of the donor.

“All this makes getting a Spanish Court to recognise the English LPA a very complex process, not to mention the time and additional costs it takes.

“When it comes to Deputyship Orders, whilst it can be possible to get some foreign authorities to recognise an existing Deputyship, it’s expensive and time consuming at a time when it might be critical to have access to the foreign assets and when other funds may be limited or unavailable.

“As ‘attorneys’, who are given power under an English Lasting Power of Attorney, are not able to delegate their power, they are not able to appoint another ‘attorney’ to handle the foreign assets like properties or bank accounts. This means that, for example, in order to sell a property in Spain for someone who has lost mental capacity, the English ‘attorney’ would need to travel to Spain to deal with the transaction.

“A much easier option is to ensure that both an English LPA, covering any English affairs, and a separate Spanish Power or Attorney, which is specifically worded to authorise the appointed attorneys to deal with any Spanish assets in the event of loss of capacity, are prepared.

“How difficult or easy this process is will, of course, depend on what country the assets are located in.

“However, we always advise legal practitioners who are preparing an English LPA to consider how their client’s overseas assets will be dealt with and to encourage them to seek appropriate legal advice from a lawyer in that country in the same way they would recommend that anyone with assets overseas considers a separate will to cover those foreign effects. Ultimately, it’s about future-proofing. It’s hard enough for family members dealing with effects of a loved one losing mental capacity, without having an unnecessarily laborious and costly legal battle to be able to do what’s best for them.”

Article from Worldwide Lawyers

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Testamentary Capacity and Banks v Goodfellow 1870

BY: Paul / 0 COMMENTS / CATEGORIES: Power of Attorney

 

In 1870, a three-part test for Testamentary Capacity was laid down in what is now referred to as
Banks v Goodfellow (1870). 

It sets out that a Testator has capacity if:

  1. They understand the nature of making a Will and its effects;
  2. They understand the extent of the property of which they are disposing; and
  3. They are able to comprehend and appreciate the claims to which they ought to give effect and are not affected by any disorder of the mind that influences their will in disposing of their property.

Solicitors and Will writers therefore are duty-bound to ask certain pertinent questions of their clients when preparing Wills, so that they can satisfy themselves that the test has been met.

If in any way the test has not been met, then after the Testators death, the Will could easily be challenged under the claim that full Testamentary Capacity was not established.

In order to satisfy these conditions, our Advisor will need to establish the following:

  1. Your name and full personal details including date of birth, etc.
  2. The makeup of your immediate family – even if certain members are going to be excluded from the Will.
  3. A broad understanding of your estate notated in the form of a Statement of Assets
  4. What gifts are being given, to whom and under what circumstances.
  5. Questions regarding your current state of health and any medication that you may be taking, if relevant to establishing coherence of thought.

Once Testamentary Capacity has been established, this may be clearly noted as such, at the very beginning of your Will.

Because we keep very accurate attendance notes and records of all of our conversations with you, we are 100% confident that once a Will produced by ourselves is signed and witnessed, it is from then on completely robust and steadfast against any potential claim of insufficient mental capacity, assuming all the information required to establish said capacity has been forthcoming.

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