Who can access your medical records when you die?
Posted on 7th September 2021
If someone dies and there’s uncertainty about their mental capacity when they made their Will one answer might be to refer to their medical records.
Can you just ask their GP to provide them?
Valid Wills
You might want to challenge whether a Will is valid if you think that the person making the Will, called the testator, didn’t fully understand what it would mean. This is known as testamentary capacity.
The test for whether someone has capacity dates from Victorian times and says that the testator should understand:
the nature of making a Will and its effect
the extent of the property included in the Will
claims which should be considered.
This is why a Will can be challenged on the basis that someone’s estate was distributed in their Will in a way that they would not have done if they fully understood the implications.
Who can confirm testamentary capacity
If there’s a dispute the court will have to decide whether someone had capacity to make a valid Will. Key evidence will normally be the testator’s medical records.
When a person dies, the health records held by their doctor are returned to Primary Care Support England (PCSE). They are generally kept for 10 years and then destroyed.
You can apply for a copy of medical records if you are an executor or administrator of their estate or if you might have a claim on their estate. Solicitors can apply on behalf of a concerned person with their written consent.
How to apply for access to medical records
To make an application without charge you can download and complete the application form, which can then be returned, together with supporting documents to confirm your identity. If you are applying as an executor or administrator, you will need a copy of the Will or grant of representation. You can send your application to Primary Care Support England. Processing the application can take up to 40 days.
When making the application you should give details of the period you are concerned about, which will normally be around the date the Will was signed. You will need to give details of your concerns or potential claim.
Health professionals will review the application and decide what can be released, so they might ask for more information. Anything that isn’t directly relevant to the claim will not be disclosed and sensitive information might be redacted to protect the privacy of the testator.
If hospital or care home records are needed a separate request must be made directly and a fee might be payable.
If you are considering making a Will and have any concerns, you should speak with a qualified professional who will explain how you can obtain confirmation that you have capacity to make a Will.
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