EWJ Dec 2023 - Journal - Page 31
“Willie’s Law” - Testing Times
for Capacity in Scotland?
by Thomas McFarlane and Stephanie Hepburn examine the ramifications of ‘Willie’s Law’ in
regard to legal capacity
Before William Johnston died, he signed a
Partnership Variation Agreement. However, his
family claimed that he did not have capacity to sign it
and are calling for an introduction of “Willie’s Law”.
The law would require a medical professional to cosign legal documents of vulnerable people to prove
they had legal capacity. But what is the current position in relation to legal capacity in Scotland and what
would change if “Willie’s Law” was enacted?
Indeed, if a POA had been in place in this particular
case, the outcome could potentially have been
avoided. This acts as another important reminder of
the potential benefits of putting a POA in place as
early as possible in life. If an adult loses the capacity to
manage their property, finances, or personal welfare
when they do not have a POA in place, the only way
to acquire legal authority to manage the individual’s
affairs is to apply for a guardianship or intervention
order pursuant to the 2000 Act.
In Scotland, adults are presumed to have capacity to
enter into legal documents and there is currently no
general legal obligation to have a person assessed before they sign a legal document. However, a notable
exception to this general rule is in relation to Powers
of Attorney (“POA”), where pursuant to the Adults
with Incapacity (Scotland) Act 2000 (“2000 Act”), a solicitor; practising member of the Faculty of Advocates,
or a UK medical doctor must certify a person’s capacity when that person wishes to put a POA in place.
Mr Calin Hopsitar
That said and more generally, where a solicitor is
involved in a legal transaction and pursuant to the
Law Society of Scotland’s practice rules, they are duty
bound to satisfy themselves that their client has capacity; by considering the nature of the specific instructions and their client’s ability to understand those
instructions and their consequences.
If the solicitor is in any doubt as to their client’s
capacity, including if they consider their client may be
BSc, MSc
Clinical Psychologist, Assessment of Adults and Children
Mr Calin Alexandru Hopsitar is a Clinical Psychologist specialising in the assessment of adults and children.
He undertakes independent assessments in a variety of areas and authors expert witness reports, assessing children, adolescents
and adults, both as part of joint instructions or specific party instructions, to assist the courts in their decision-making process.
Throughout his professional career, Mr Hopsitar's main area of expertise has been clinical psychology, using an
evidenced-based scientific approach in his practice. His experience as a clinician consists of expertise in assessing cognitive
functions, various psychopathological presentations, personality traits and relationship dynamics.
He always guides his diagnosis, formulation and intervention based on the pivotal knowledge that developmental psychology
offers. In assessments, he does not consider only the psychometrics or the answers of the individual, but includes other
important factors: developmental history, family history, socioeconomic status, cultural background, to generate an informed,
robust conclusion of the way that various elements work together for each individual’ psychological dimension.
Mr Hopsitar has specialised family law and procedure training as an expert psychologist.
Areas of Expertise
Assessment of Adults and Children
• Cognitive Functions
• Personality Traits
• Psychopathology
• Trauma
• Parenting skills
• Relationship Dynamics
• Attachment styles
Mr Hopsitar has published articles and presented at the World Congress of
Behavioural and Cognitive Therapies.
Contact: Calin Hopsitar
Tel: 07845 136 701
Email: calin.hopsitar@gmail.com
Area of work: London and surrounding areas
EXPERT WITNESS JOURNAL
29
DECEMBER 2023