Many important legal decisions depend on whether a person has the mental capacity to make them. Capacity refers to a person’s ability to understand information, use that information to make a decision, and communicate their choice. In law, capacity is not a single, fixed state. It is decision-specific and time-specific. A person may have capacity to make one type of decision but not another. A person may also have capacity on one day and lack capacity on another.
In Trinidad and Tobago, issues of capacity most often arise in three areas. These are the making of wills, the granting of powers of attorney, and applications under the Mental Health Act for court-supervised management of a person’s affairs. In each of these areas, medical assessments and documentation can play a critical role.
Testamentary Capacity and Wills
When a person makes a will, the law requires that the person has what is called testamentary capacity. The legal test, which originates from the long-standing case of Banks v Goodfellow (1870) LR 5 QB 549 , remains the governing standard in Trinidad and Tobago.
A person making a will must be able to:
- Understand that they are making a will and what a will does
- Understand, in general terms, what property they own
- Recognize the people who might reasonably expect to benefit from their estate
- Be free from any mental disorder that affects their judgment in relation to these matters
The burden of proving that a will is valid rests on the person seeking to rely on it. If a will appears rational and is properly executed, the law presumes capacity. However, that presumption can be challenged where there are suspicious circumstances or evidence of cognitive impairment.
The Court of Appeal decision in Nothnagel v Nothnagel (2025) illustrates how capacity issues can determine whether a will is upheld. In that case, a 92-year-old woman made a later will that significantly changed how her estate would be distributed. Evidence from caregivers and family members showed progressive cognitive decline, memory lapses, hallucinations, and confusion. The lawyer who prepared the later will did not obtain a medical assessment of capacity and did not keep detailed notes of instructions.
The court found that there was overwhelming evidence that the testatrix lacked testamentary capacity at the relevant time. The later will was declared invalid, and an earlier will was admitted to probate. The case demonstrates that courts place considerable weight on contemporaneous evidence of mental functioning, including medical records, when determining capacity.
Powers of Attorney
A power of attorney is a document in which one person (the donor) authorizes another person (the attorney) to act on their behalf in relation to financial or legal matters. For a power of attorney to be valid, the donor must have capacity at the time it is granted.
In Trinidad and Tobago, an ordinary power of attorney automatically terminates when the donor loses mental capacity. There is currently no legislation providing for an enduring power of attorney that survives incapacity. This means that once a person becomes mentally incapable, an existing power of attorney can no longer be used.
This point is often misunderstood by families and, in some cases, by financial institutions. A power of attorney is not a permanent solution for managing the affairs of a person who has lost capacity. Once incapacity arises, a different legal pathway is required.
Mental Health Act and Protection of Property
Part VII of the Mental Health Act, Chap. 28:02, provides the mechanism for protecting the property and affairs of persons who are incapable of managing them due to mental disorder.
Under the Act, the Court may exercise control over the property and affairs of a patient or appoint a committee or receiver to manage the patient’s property and affairs.
A central feature of this process is the medical certificate. The Act requires a medical certificate that addresses:
- The diagnosis of mental disorder
- The nature and extent of impairment
- Whether the person is capable of managing property and affairs
- The likely duration of the condition
Doctors therefore play a key role in enabling the court to determine whether protective orders are necessary.
The Importance of Medical Documentation
Across wills, powers of attorney, and Mental Health Act applications, one theme is consistent. Courts rely heavily on contemporaneous medical evidence. General impressions that a person “seemed fine” are rarely sufficient. What is required is documentation that describes orientation, memory, reasoning, insight, ability to understand information, ability to communicate decisions, and whether capacity fluctuates.
Clear, factual clinical notes can assist courts in determining whether a person had capacity at a particular time and for a particular decision. Such documentation supports lawful decision-making and helps protect vulnerable individuals from exploitation or improper influence.
Capacity is a foundational concept in legal decision-making. It affects whether wills are valid, whether powers of attorney can operate, and whether court supervision of a person’s affairs is required. Trinidad and Tobago’s legal framework places significant weight on medical assessments and records. Accurate, objective, and timely documentation by medical professionals is therefore an essential part of the system that safeguards both individual autonomy and legal certainty.
