Competency to Make a Will

Sir: I would like to present two thoughts that might be helpful to psychiatrists who are asked to perform a forensic consultation to assess competency to make a will [1]:

  1. It has been my experience that, according to the American Association of Psychiatry and the Law, Ethical Guidelines, "A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes" [2].  The role ambiguity and conflict, as well as the loss of both the confidentiality essential to a therapeutic alliance and the objectivity essential for a forensic consultation, can be best avoided by splitting such dual roles with the individual patient between two clinicians: the treating psychiatrist and the forensic psychiatrist [3].
  2. Even with the organically impaired patient, psychodynamically driven affective factors such as pathological grief can be major influences on competency.  When the forensic psychiatrist encounters such a case, referral for appropriate treatment and a subsequent reevaluation of competency is warranted [4].


  1. Spar JE, Garb AS: Assessing competency to make a will. Am J Psychiatry 1992; 149:169-174
  2. American Academy of Psychiatry and the Law: Ethical Guidelines for the Practice of Forensic Psychiatry, Adopted May, 1987, revised ed. Baltimore, American Academy of Psychiatry and the Law, 1989.
  3. Stone AA: Sexual misconduct by psychiatrists: the ethical and clinical dilemma of confidentiality. Am J Psychiatry 1983; 140:195-197
  4. Bursztajn HJ, Harding HP Jr, Gutheil TG, Brodsky A: Beyond cognition: the role of disordered affective states in impairing competence to consent to treatment. Bull Am Acad Psychiatry Law 1991; 19:383-388

Cambridge, MA