2.1 An initial problem arises with the terminology used in this reference. The phrase 'lacking will-making capacity' is, on its own, ambiguous. The Commission has used it in order to avoid more specific, but nevertheless more pejorative terms, such as 'intellectually handicapped' or 'mentally disabled' or 'disordered', descriptions which run contrary to current attitudes in civil rights and anti-discrimination law.
2.2 There are also definitional problems in using more specific terms. Our aim is for a statutory wills scheme to cover as wide a range of people as possible. Specific terminology in this area tends to impose unnatural and sometimes illogical limitations, often including clearly inappropriate groups and failing to offer protection to those most in need of it.4 For this reference and the rest of this paper therefore, the phrase 'lacking will-making capacity should be taken to include individuals in at least four discrete categories, that is:
(a) persons suffering from a developmental disorder or disability;
(b) persons diagnosed as suffering from a mental illness or disorder, including both organic and non-organic psychological conditions;
(c) persons lacking capacity by reason of disease or accident. This would include the diseases and incapacities associated with old age and brain damage affecting capacity such as results from a stroke or accident;
(d) persons who may have testamentary capacity but through severe physical disability or injury are completely unable to communicate.
2.3 We intend that this scheme will be open to all the above individuals, whether or not their estate comes under the management of the Protected Estates Act 1983 and whether or not they are admitted as patients under the Mental Health Act 1983.5
FOOTNOTES
4. See, for example the definitions of Intellectually handicapped person" and Intellectual impairment" in s4(1) of the Anti-Discrimination Act 1982, and the curious exclusions that have resulted from them: Helen Wilson "A struggle to be waged" (1989) 14 Legal Services Bulletin 20 at 21.
5. The United Kingdom scheme is limited to patients under the mental health legislation. See s94(2) Mental Health Act 1983 (UK).
