Testamentum tempore pestis: el derecho civil y la bioética frente al testamento en casos de epidemia / Testamentum tempore pestis Civil law and bioethics faced with the testament in cases of epidemics / Testamentum tempore pestis: o Direito civil e a bioética frente ao testamento em casos de epidemia

Resumen: El confinamiento por la pandemia del covid-19 afectó el otorgamiento de testamentos, siendo estos tan necesarios ante las crisis sanitarias cuando las personas precisan decidir el destino de sus bienes y otros actos individuales ante el riesgo de vida. La solemnidad del testamento impide el ejercicio de testar de los pacientes, incluso de las personas sanas. Facilitar el derecho de testar en tiempos de peste tiene contenido bioético, al estar de por medio la vida, salud, autodeterminación y el derecho de decidir el destino patrimonial. El testamento en épocas de pandemia, apoyado en las TIC, es una solución que debe viabilizarse con la ayuda de la digitalización y tecnología, con el fin de permitir el ejercicio de los derechos de última voluntad en aislamiento por contagio.

Abstract: The confinement due to the Covid pandemic affected the granting of wills, which are so necessary in the health crisis when people need to decide the fate of their property and other individual acts at the risk of life. The solemnity of the will impedes the exercise of testamentary rights of patients, even healthy people. Facilitating the right to testament in times of plague has a bioethical content since life, health, self-determination and the right to decide the destiny of property are at stake. The will in times of pandemic, supported by ICTs, is a solution that should be made feasible with the help of digitization and technology in order to allow the exercise of the rights of last will in isolation by contagion.

Resumo: O confinamento pela pandemia da covid-19 afetou a outorga de testamentos, sendo estes muito necessários durante as crises sanitárias, quando as pessoas precisam decidir o destino de seus bens e outros atos individuais diante do risco de vida. A solenidade do testamento impede o exercício de testar dos pacientes, inclusive das pessoas sadias. Facilitar o direito de testar em tempos de peste tem conteúdo bioético, al estar de por médio (no entendí el significado de esto) a vida, saúde, autodeterminação e o direito de decidir o destino patrimonial. O testamento em épocas de pandemia, apoiado nas TIC, é uma solução que deve viabilizar-se com a ajuda de digitalização e tecnologia, a fim de permitir o exercício dos direitos de última vontade no isolamento por contagio.

The last will: Estate divisions as a testament of to whom altruism is directed.

We use data on estate divisions to study to whom altruistic preferences are directed. Insofar bequests are given without the prospect of future personal benefits in mind, they are presumably intrinsically motivated. Hence, estate divisions provide a rare opportunity to study intrinsically motivated prosocial behavior in the field. The empirical analysis is based on data from digitized estate reports for all individuals in Sweden who passed away in 2002 and 2003. The data show in detail how the decedents distributed their bequests. We find that family members, both genetic (offspring) and non-genetic (partner), receive the lion's share of the estates. Other relatives, friends and strangers (represented by charities) receive only very small shares of the total estate wealth. The results suggest that intrinsically motivated altruism is primarily directed towards close family members.

The assessment of testamentary capacity.

In the older generations, cognitive impairment and wealth are both increasing. Doctors routinely assess decisional capacity in health matters yet are less adept in the assessment of other domains. Recent New Zealand Court decisions will likely result in increased requests by lawyers for contemporaneous medical assessments of the capacity to make a will. The clinical assessment is underpinned by the legal test for testamentary capacity. A psychogeriatrican and a barrister explain the principles and the clinical application. Careful assessments could protect the older adult and minimise the risk of a contested will after death.

Fear of imminent death - use of evidence in forensic-psychiatric expertise. / Obawa rychlej smierci ­ wykorzystanie materialu dowodowego w ekspertyzie sadowo-psychiatrycznej.

In accordance with the Polish civil law, there are at least several ways to dispose of property in the event of death. One of them is a special form of oral testament. The main issue to be determined by the court is to either confirm or deny the existence of fear of imminent death of the testator at the time of bequest. For this purpose, the court uses expert psychiatrists' opinions. The article presents a case of a man in the terminal phase of a malignant disease who used an oral form of bequest. Such cases are relatively rare and therefore the described case is intended to illustrate the complex nature of the expertise. It points to the need for the experts to take into account complex legal regulations, the observance of which stipulates the possibility of using this form of will. Factual assessment of the witnesses' testimony complicates elaboration of the material, as the testimony is generally contradictory. It was proposed that the witnesses' testimony should be sorted out in terms of substance (psychopathology), based on the analysis of the separated research areas. Medical records can be treated not only as a source of information about the dynamics of somatic diseases of the testator and secondary changes in his/her mental state. It can also be a valuable source of knowledge about the testator's attitude to health and disease issues, treatment processes, prognosis, threat to his/her life and death.

Comparing Older Persons' Human Rights: Exploratory Study of the International Older Persons' Human Rights Index (IOPHRI).

BACKGROUND AND OBJECTIVES: Over the last 2 decades, several international indices have been developed to describe the status of older persons. None, however, have examined their human rights. The International Older Persons' Human Rights Index (IOPHRI) fills in this gap by analyzing the formal legislative foundation of human rights for older people. The objective of this exploratory study is to examine the IOPHRI while comparing the legislation in 6 countries. RESEARCH DESIGN AND METHODS: A comparative international exploratory study comparing the human rights legislation of 6 countries: United States, Chile, Ireland, South Africa, India, and Australia in 5 different human rights domains: constitutional, protection, familial and informal support, planning, and empowerment. RESULTS: The findings suggest that the actual relationship between formal human rights of older persons and the real world is complex: for example, while the IOPHRI index places South Africa in first place, it is far behind compared with all other participants in the Global AgeWatch Index (which measures objective elements such as life expectancy at 60, or poverty rates in old age). DISCUSSION AND IMPLICATIONS: Measuring and indexing human rights of older persons reveal significant methodological issues. Beyond these methodological challenges, comparing the ranking of the IOPHRI to nonlegalistic indices raises significant questions about the relationship between formal human rights and the actual living experiences of older persons.

Reflexiones sobre la protección patrimonial de las personas con discapacidad intelectual. Especial referencia a su fiscalidad. Parte II / No disponible

Es una constante preocupación en los padres garantizar la protección personal y patrimonial de sus hijos con discapacidad para que puedan tener una vida digna una vez que falten sus principales apoyos. El Estado, consciente de los cambios sociales producidos en las últimas décadas, ha previsto mecanismos para proteger a las personas más vulnerables, pero muchas veces se revelan insuficientes, debiendo las familias planificar los apoyos y recursos necesarios para que sus familiares con discapacidad mantengan una vida plena. En este trabajo se reflexiona sobre los principales instrumentos de protección patrimonial en favor de las personas con discapacidad, con especial referencia a su fiscalidad y a la incidencia que tienen en la participación en el coste de los servicios prestados en el marco de la llamada "Dependencia"

Common concern for parents of children with a disability is the question: "What will happen when we’re gone?". The Administration is aware of this growing problem and has developed several policies to care for vulnerable people, especially persons with disabilities. But frequently the State action is not enough, and families need to plan how to ensure that the needs and concerns of their relatives are addressed. This paper analyses the main techniques used to support the needs of the child, during and beyond the lifetime parents (trusts for disabled people, pension funds, ...), with particular reference to tax law matters. We also attempt to determine whether providing for the support of a disabled person can disqualify him or her from receiving other government benefits (AU)

Testamentary Capacity Assessment Tool (TCAT): A Brief Instrument for Patients with Dementia.

BACKGROUND: In current practice, it is common for the medical practitioner to assess a person's testamentary capacity (TC) and give evidence to the Courts about a potential will contest. TC is an advanced cognitive activity that is both situation- and task-specific. OBJECTIVE: The aim of the present study was the development of a brief, specialized instrument for TC assessment in patients with dementia. METHOD: We developed a short tool consisting of four subtests, assessing the person's core functions which are required for TC: memory (orientation, autobiographical memory and realistic perception of beneficiaries), absence of serious psychopathology, knowledge of financial parameters (value of assets, everyday life products, bills), and intention (vignettes, theory of mind). For its validation, we examined 64 outpatients from the Cognitive Disorders/Dementia Unit, 2nd Department of Behavioral Neurology, University of Athens. The decision of the expert served as the gold standard for the evaluation of TC. RESULTS: Of the 64 participants, 39 were judged by the expert as capable of TC and the remaining 25 as incapable. For the total scale (maximum score of 48), the best combination of sensitivity (82.6%) and specificity (100%) was obtained for a cut-off score of 32/33. Cronbach's alpha showed high levels of internal reliability for the scale (α= 0.86) and the point-biserial correlation coefficients showed high levels of criterion-related validity (rbp = 0.797, p < 0.001). CONCLUSION: The new instrument appears to be a reliable screening tool for the evaluation of TC in dementia, which can be used by both the expert and the non-expert. Further research is needed to confirm these promising findings.

Reflexiones sobre la protección patrimonial de las personas con discapacidad intelectual. Especial referencia a su fiscalidad / No disponible

Es una constante preocupación en los padres garantizar la protección personal y patrimonial de sus hijos con discapacidad para que puedan tener una vida digna una vez que falten sus principales apoyos. El Estado, consciente de los cambios sociales producidos en las últimas décadas, ha previsto mecanismos para proteger a las personas más vulnerables, pero muchas veces se revelan insuficientes, debiendo las familias planificar los apoyos y recursos necesarios para que sus familiares con discapacidad mantengan una vida plena. En este trabajo se reflexiona sobre los principales instrumentos de protección patrimonial en favor de las personas con discapacidad, con especial referencia a su fiscalidad y a la incidencia que tienen en la participación en el coste de los servicios prestados en el marco de la llamada "Dependencia"

A common concern for parents of children with a disability is the question: "What will happen when we're gone?". The Administration is aware of this growing problem and has developed several policies to care for vulnerable peoples especially persons with disabilities. But frequently the state action is not enough, and families need to plan how to ensure that the needs and concerns of their relatives are addressed. This paper analyses the main techniques used to support the needs of the child, during and beyond the lifetime parents (trusts for disabled people, pension funds, ...) with particular reference to tax law matters. We also attempt to determine whether providing for the support of a disabled person can disqualify him or her from receiving other government benefits

Limits on testamentary freedom for people with dementia in Albania: Innovative Practice.

The extent to which dementia affects a person's testamentary capacity has been the subject of much litigation with some countries introducing legal tests to assess capacity. In light of substantial societal change in Albania in the last two decades and an epidemic of property litigation, Albanian legal practice is witnessing an increasing number of attempts to posthumously nullify wills. Plaintiffs are mainly relatives of the deceased testator who are unhappy with the quantity or quality of the property they have inherited. Based on plaintiffs' claims, solicitors may request expert neuropsychiatric reviews postmortem, often basing their position on prescription drug use by the testator during his/her last years of life. The authors discuss ethical issues intrinsically related to the difficult role of a potential expert witness in these litigation cases.

Right to property, inheritance, and contract and persons with mental illness.

Discrimination against people with mental illness is rife across the globe. Among different types of discrimination is the policy in many countries where persons with mental illness are forbidden to inherit property, and they are not able to enter into a contract in a large number of countries. Using various databases, legislations dealing with law of contract, law of succession/inheritance, and law relating to testamentary capacity (wills) of all UN Member states (193 countries) were studied. With respect to federal countries, the laws of the most populous state as a representative state in the respective country were studied. Only 40 Member States (21%) recognize/allow persons with mental health problems to enter into contracts. Of these, however, only 16 Member States (9%) recognize the right of persons with mental health problems to enter into a contract without any restrictions. The remaining 24 Member States (12%) allow a contract entered into by a person with mental health problems to be invalidated under certain conditions. These countries also make the validity of the contract subject to the capacity to consent or based on the level of understanding of the person with mental health problems. They may allow persons with mental health problems to enter into contracts only for transactions of an insignificant nature or of personal rights. Only 9% of the countries allow people with mental illness to enter into contracts in an unrestricted way. Furthermore, there remain variations between high income and low income states. In spite of international laws in many countries, laws remain discriminatory.

Too ill to will? Deathbed wills: assessing testamentary capacity near the end of life.

Assessing testamentary capacity in the terminal phase of an illness or at a person's deathbed is fraught with challenges for both doctors and lawyers. Numerous issues need to be considered when assessing capacity for a will. These issues are exacerbated when such an assessment needs to be undertaken at the bedside of a dying patient. The nature and severity of the illness, effects on cognition of the terminal illness, effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers, and a range of other issues confound and complicate the assessment of capacity. What is the doctor's role in properly assessing capacity in this context and how does this role intersect with the legal issues? Doctors will play an increasing role in assessing testamentary capacity in this setting. The ageing of society, more effective treatment of acute illness and, often, the prolongation of dying are only some of the factors leading to this increasing need. However, despite its importance and increasing prevalence, the literature addressing this challenging practical area is scarce and offers limited guidance. This paper examines these challenges and discusses some practical approaches.

Gender bias and judicial decisions of undue influence in testamentary challenges.

Allegations of undue influence constitute a common basis for contests of wills. Legal research from the 1990s suggests that gender bias factors significantly into judicial decision-making regarding alleged undue influence and testamentary intent. In this study, we sought to assess whether this bias is present today and to identify any factors that may be associated with it. Probate judges from several jurisdictions in the United States were asked to consider two hypothetical case vignettes drawn from actual published decisions. In our study, the gender of the testator played only a minor role in how judges weighed factors in the decision-making process and, overall, did not significantly influence opinions regarding the presence of undue influence. The specifics of the case and the gender of the judge emerged as the most consistent and robust potential influences on decision-making. Our results suggest that probate rulings involving undue influence are likely to represent a complex interaction of factors involving the testator's and judge's genders and the specifics of individual cases. The implications of these findings are discussed.

[Assessment of legal capacity and testamentary capacity]. / Begutachtung der Geschäfts- und Testierfähigkeit.

The assessment of legal capacity and testamentary capacity require thorough knowledge of the legal framework and the relevant case law. This paper explains the concept of the legal capacity to contract and the concept of testamentary capacity with respect to German civil law. The relevance of major mental disorders for the assessment of legal capacity and testamentary capacity is discussed.

Testamentary capacity of the schizophrenic patient.

Testamentary capacity refers to an individual's capability to write his or her own will. Psychiatrists are required occasionally to give expert opinions regarding the testamentary capacity of individuals with a medical history or suspected diagnosis of a mental illness. This may stem from the patient/lawyer/ family initiative to explore the current capacity to testate in anticipation of a possible challenge, or may be sought when testamentary capacity of a deceased has been challenged. In this article we examine the medico-legal construct of testamentary capacity of the schizophrenic patient, and discuss the various clinical situations specific to schizophrenic patients, highlighting their impact on the medical opinion regarding testamentary capacity through examining the rulings of Israel's Supreme Court in a specific case where the testamentary capacity of a mentally ill individual who was challenged postmortem, and provide a workable framework for the physician to evaluate the capacity of a schizophrenic patient to write a will..

Financial and testamentary capacity evaluations: procedures and assessment instruments underneath a functional approach.

BACKGROUND: Mental health professionals are frequently involved in mental capacity determinations. However, there is a lack of specific measures and well-defined procedures for these evaluations. The main purpose of this paper is to provide a review of financial and testamentary capacity evaluation procedures, including not only the traditional neuropsychological and functional assessment but also the more recently developed forensic assessment instruments (FAIs), which have been developed to provide a specialized answer to legal systems regarding civil competencies. METHODS: Here the main guidelines, papers, and other references are reviewed in order to achieve a complete and comprehensive selection of instruments used in the assessment of financial and testamentary capacity. RESULTS: Although some specific measures for financial abilities have been developed recently, the same is not true for testamentary capacity. Here are presented several instruments or methodologies for assessing financial and testamentary capacity, including neuropsychological assessment, functional assessment scales, performance based functional assessment instruments, and specific FAIs. CONCLUSIONS: FAIs are the only specific instruments intended to provide a specific and direct answer to the assessment of financial capacity based on legal systems. Considering the need to move from a diagnostic to a functional approach in financial and testamentary capacity evaluations, it is essential to consider both general functional examination as well as cognitive functioning.

Deathbed wills: assessing testamentary capacity in the dying patient.

BACKGROUND: Deathbed wills by their nature are susceptible to challenge. Clinicians are frequently invited to give expert opinion about a dying testator's testamentary capacity and/or vulnerability to undue influence either contemporaneously, when the will is made, or retrospectively upon a subsequent challenge, yet there is minimal discourse in this area to assist practice. METHODS: The IPA Capacity Taskforce explored the issue of deathbed wills to provide clinicians with an approach to the assessment of testamentary capacity at the end of life. A systematic review searching PubMed and Medline using the terms: "deathbed and wills," "deathbed and testamentary capacity," and "dying and testamentary capacity" yielded one English-language paper. A search of the individual terms "testamentary capacity" and "deathbed" yielded one additional relevant paper. A focused selective review was conducted using these papers and related terms such as "delirium and palliative care." We present two cases to illustrate the key issues here. RESULTS: Dying testators are vulnerable to delirium and other physical and psychological comorbidities. Delirium, highly prevalent amongst terminal patients and manifesting as either a hyperactive or hypoactive state, is commonly missed and poorly documented. Whether the person has testamentary capacity depends on whether they satisfy the Banks v Goodfellow legal criteria and whether they are free from undue influence. Regardless of the clinical diagnosis, the ultimate question is can the testator execute a specific will with due consideration to its complexity and the person's circumstances? CONCLUSIONS: Dual ethical principles of promoting autonomy of older people with mental disorders whilst protecting them against abuse and exploitation are at stake here. To date, there has been scant discourse in the scientific literature regarding this issue.