All of us who work in the private client sphere have been considering the issues which might arise when making Wills or LPA’s in the Covid-19 environment, whether it is how to assess capacity when someone is isolated in hospital, how to witness a Will or LPA effectively whilst protecting those involved, or what sort of challenges we might expect to see when these Wills are eventually proven.

Many of us had considered the effect that a small decrease in oxygen saturation has on capacity and whether blood oxygen readings should be taken from hospitalised testators to assist with questions of their testamentary capacity. But doctors are now reporting significant reductions in oxygen saturation in patients who had been at home and presenting well. Some patients were alert and interacting with others, yet had blood oxygen levels which would usually cause loss of consciousness, or worse.  This could mask a lack of capacity, in the same way that coping mechanisms can mask a decline in capacity in the early stages of dementia.

Whilst silent hypoxia is not unheard of in other conditions, it is unusual for similar diseases like flu or other types of pneumonia, which means that anyone currently drafting Wills or LPAs might want to become familiar with the symptoms of hypoxia. Equally, anyone reviewing Will files in future could be well-served to remember that the decline in a Covid-19 patient's capacity might not have been as sudden as it initially appeared.