The topic of client capacity is a difficult one for most solicitors to deal with – how do you go about raising with a client, or prospective client, the fact that they may not have the capacity to instruct you and what do you then do if you find that such capacity does not exist?
Those used to drafting wills may have acquired a better feel for such things as a result of being asked to act for elderly clients where questions of testamentary capacity may more regularly arise. Others, however, may not even think in terms of lack of capacity – even though this is not a topic which is confined solely to questions of testamentary capacity. It can apply in relation to all instructions.
The question of capacity is not made any easier by the fact that the law dealing with this area is not clear and the conduct rules are vague, to say the least.
The SRA Code of Conduct 2011 does not provide a great deal of assistance on the subject.
Outcome O (1.12) , which provides that you must ensure that “clients are in a position to make informed decisions about the services they need, how their matter will be handled and the options available to them” does not on the face of it appear to deal with issues of mental capacity. This only becomes apparent on further reading of the chapter where Indicative Behaviour IB (1.6) provides “in taking instructions and during the course of the retainer, having proper regard to your client’s mental capacity or other vulnerability, such as incapacity or duress.”
Not that this is a recent problem. Previous Codes and Practice Rules have not been particularly expansive on the point, despite the fact that case law shows that there is clearly both a professional and a legal duty upon solicitors to make the decision as to whether capacity exists. The only reference to capacity in the 2007 Code of Conduct was at guidance note 6(a)(iii) to Rule 2, which concentrated on where the client is a child or a patient within the meaning of the Mental Health Act 1983 whilst the 1999 Guide to the Professional Conduct of Solicitors restricted itself principally to a brief discussion of the topic in relation to wills and the administration of estates.
Other jurisdictions have fared slightly better and it may be that practitioners can turn to guidance produced in other jurisdictions for an overview of the issues – subject of course to the caveat that they deal with different legal systems and different rules. For example, the Law Society of New South Wales has produced a practical guide as to client capacity and the Law Society of Scotland has published “Vulnerable Clients Guidance”. So far as our own jurisdiction is concerned the Bar Council has produced guidance to “assist barristers who have doubts about a client’s capacity – by reason of mental disorder or by reason of temporary intoxication – to understand advice, give instructions, or follow or take part in proceedings” and there are a number of other more general guides – for example those to be found on the .GOV web site and from organisations such as STEP. An appendix at the end of this article contains links to a number of resources which may be found to be useful. Finally, a more in depth exploration of the topic will be found in “Mental Capacity Law and Practice”, edited by District Judge Gordon Ashton OBE and published by Jordans.
What is Client Capacity?
Client capacity is not easy to define because the term encompasses a range of conditions and situations – some of which may be permanent conditions and some of which may only be temporary. Indeed, some instances of incapacity may arise only from the circumstances in which a person finds themselves or the pressures placed upon them by others.
Thus the definition of client capacity is not the same as the definition of mental capacity as set out in the Mental Capacity Act 2005 (MCA) and each case should be assessed on its own merits. An elderly client, for example, may be outside of the criteria set out in the MCA and yet, because they are in a vulnerable position vis-à-vis relations and other influencers upon their decision making, may nevertheless be judged to be vulnerable and unable to make informed decisions as required in Outcome O (1.12).
Whilst the MCA, therefore, provides a comprehensive framework for decision making on behalf of adults aged 16 and over who lack capacity to make decisions on their own behalf, whether permanently or temporarily, it would not apply, for example, to someone capable of understanding the nature of a transaction, but who for other reasons are susceptible to entering into a disadvantageous arrangement.
Matters are further complicated by the fact that a client may have capacity to make some decisions but not others, and a finding of lack of capacity in one area does not mean a lack of capacity in others.
Determining whether a client has capacity must, therefore, be a somewhat subjective one.
Thus, from the perspective of the MCA, a person is deemed to lack capacity if, at the time the decision needs to be made, he or she is unable to make or communicate the decision because of an ‘impairment of, or a disturbance in the functioning of, the mind or brain’. However, for the elderly client who does not, for example, have dementia, the lack of capacity may simply arise from a desire not to oppose, or a fear of opposing, the decision of a child or other relative.
What factors should solicitors consider?
The answer to this question has, of necessity, to be somewhat open-ended. However, there are a number of factors which a solicitor should bear in mind in instances where capacity might be an issue.
The first set of factors are the common-sense ones – are there any warning signs which from basic questions and observations make the solicitor cautious as to the client’s capacity.
Secondly, there are the more evidential factors – for example ascertaining whether the client is suffering from a clinical condition which could impair their capacity or are they likely to be subject to external pressure, influence or duress.
Thirdly, solicitors should, when taking instructions, ask open questions rather than closed “Yes/No” questions in order to help determine capacity and functioning and diminish risks of undue influence. Thus for example, asking “Can you explain to me again why you have come to see me?” rather than “You wrote to me last week – are those still your instructions?”
Finally, armed with the facts, the solicitor must decide whether the decision to be taken by the client, or the instructions to be given by them, are decisions or instructions which they are competent to take or give in all of the relevant circumstances.
The American Bar Association, in its guide “Assessment of Older Adults with Diminished Capacity” sets out a number of key questions that should be considered. Based on these, solicitors may wish to think about:
- What are legal standards of diminished capacity? In other words is the case one to which the MCA would apply or are there other criteria?
- What signs of diminished capacity should be considered? Have there been any “red flags” that may indicate problems? Have there been cognitive, emotional, or behavioural signs such as memory loss, communication problems, lack of mental flexibility, calculation problems or disorientation problems that might act as a signpost to other problems?
- Whether there are any mitigating factors to be taken into account. These could include stress, grief, depression, reversible medical conditions, hearing or vision loss, or issues such as educational, socio-economic, or cultural background.
- What is the client’s actual understanding of aspects of the proposed arrangement or transaction? Do they understand the consequences of their actions? Do they have a “moral” sense of what they are planning to do?
- Are there ways in which the solicitor can “enhance” the client’s capacity? This might include explaining things in simpler terms, seeing the client with someone other than the person suspected of placing pressure on the client or waiting until the client is mentally or emotionally in a stronger position before agreeing to decisions being made.
- Consider the pros and cons of seeking a medical opinion and what information should be made available to assist that opinion to be given.
- Having considered all of these factors – how and to what extent do they impact upon the solicitor’s judgement of capacity?
The courts, on the other hand, have not always taken a totally consistent view as to taking instructions from clients. This is particularly the case in relation to elderly clients.
The case of Kenwood v Adams  CLY 3591, for example, stated that “in the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken. The making of a Will by such a testator ought to be witnessed or approved by a medical practitioner to satisfy himself of the capacity and understanding of the testator, and records and preserves his examination and findings”.
A different approach, however, was suggested in the later case of Rudyard Kipling Thorpe (Litigation Friend of Leonie Leanthie Hill) v Fellowes Solicitors LLP  EWHC 61 (QB). Here, Sharpe J dismissed a claim that Fellowes Solicitors LLP had acted negligently in acting upon the instructions of the client who had been suffering from dementia, but who, a medical expert decided still had capacity to give instructions for the sale. Sharpe J held that the solicitors had not been negligent as there was no evidence that they were aware that the client was suffering from dementia. He further commented that solicitors are not generally required to make enquiries as to a person’s capacity unless there are circumstances which raise a doubt in the mind of a reasonably competent practitioner.
He also stated that “there is plainly no duty on solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lacked capacity. Such a requirement would be insulting and unnecessary.”
What if your client lacks capacity?
How you to respond to your assessment of your client’s lack of capacity will depend upon the matter in question, the circumstances surrounding it and the nature of the lack of capacity. The overriding factor to be borne in mind at all times is that it is a solicitors’ duty to act at all times in the best interests of their client, and the following is only a selection of the steps that might be appropriate.
Bear in mind the provision contained in section 1(3) of the MCA which states that “a person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means)” and that “the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.” In other words a client should not be treated as unable to make a decision unless all practical steps to help him or her to do so have been taken without success – for example deferring making a decision or setting up further assistance in order to enable the donor to make a decision.
If the lack of capacity is of a transient nature or one which, with appropriate handling and safeguards can be overcome, then the solicitor should take whatever steps are necessary to continue to represent the client’s best interests. This may include:
- where it is appropriate to do so, deferring taking action or acting upon instructions until such time as the client is in a position validly to give or confirm those instructions;
- creating a situation in which the client can give instructions without the direct impact of undue influence;
- explaining issues to the client in terms that the client is likely to understand and taking steps to verify that the client does understand the implication of the instructions given and the actions that you will take on his or her behalf;
- consulting with others who have the ability to take action to protect the client and/or assist the client in giving instructions or who have been involved in the welfare of the client.
If, however, the client lacks the capacity to make informed decisions or to understand the nature of the transaction or any advice you may provide, and it is not a temporary or transient situation, then things become more complicated.
The general position is that you cannot represent a client who does not have the necessary capacity unless you are instructed by a properly authorised third party, for example an attorney or a court-appointed deputy.
If the client has appointed someone to act as their attorney under a lasting (or enduring) power of attorney then it may be appropriate for you to turn to that person for instructions on behalf of the client. Alternatively, a deputy might have been appointed by the Court of Protection. Registers exist of lasting powers of attorney, enduring powers of attorney and orders appointing deputies so that you can check to see whether there are those who are able to make decisions concerning the finances, health and welfare of vulnerable people. If you have any concerns about an attorney or deputy then you should notify the Office of the Public Guardian and, if necessary, the police.
If there is no power of attorney or appointment of a deputy and you suspect that the client is the subject of abuse then you may need to consider reporting your suspicions to the relevant agency – for example the vulnerable adults department at the Department of the Social Services and, if necessary, the police. Note that the MCA introduced a criminal offence of ill-treatment or wilful neglect of a person who lacks capacity – intended to deter people from abusing, ill-treating or neglecting people who lack capacity. If convicted people can be imprisoned or fined.
The lack of clear guidance to solicitors in this area means that the steps which they are expected to take will in most cases, at the end of the day, come down to their own judgement. Such is the nature and consequence of outcomes or risk based systems.
Whatever decision is made, the solicitor is strongly advised to record the information they relied upon in making a decision, the steps they took in applying that information and why ultimately they believed the decision to be a correct one.
In doing so, they should also, of course, be conscious of other factors outside of Chapter 1 that could impact upon, or flow from, that decision. These include issues such as:
- confidentiality and the extent to which passing on information about the client could be perceived to be a breach of that duty. This could be particularly the case where raising the issue of ill-treatment or duress in relation to the client could make worse the manner in which the client is treated;
- complaints about the firm from a client who has failed, or ceased, to understand the nature of the advice given or who as a result of memory related problems has forgotten advice or explanations;
- conflicts of interest – where the best interests of the client are at odds with the best interests of an attorney or other interested party – especially in circumstances where informed consent cannot be obtained.
Finally, so far as the first of those bullet points is concerned, when thinking of reporting apparent elder abuse to third parties, solicitors should not quickly overwrite or disregard the overriding duty of confidentiality. Unless a client has expressly authorised a safeguarding referral to the Local Authority or Police, then it is arguable that solicitors should not make one unless it is blatantly apparent that the decision to report or not would be beyond their current level of capacity.
Appendix – online resources
Solicitors for the Elderly
- “A Safeguarding Strategy for Recognising, Preventing and Dealing with the Abuse of Older and Vulnerable People” (http://www.sfe.legal/assets/media/SFE_Elder_Abuse_Strategy_2014.pdf)
See the Solicitors for the Elderly web site generally for further guidance (http://www.sfe.legal)
Law Society of New South Wales
- “When a client’s capacity is in doubt – A Practical Guide for Solicitors” (http://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/023880.pdf )
- “Client capacity guidelines: civil and family law matters” (https://www.lawsociety.com.au/ForSolictors/professionalstandards/Ethics/Protocolsguidelines/Clientcapacityguidelines/index.htm)
- Acting for the Incapable – A Delicate Balance (http://www.supremecourt.justice.nsw.gov.au/agdbasev7wr/supremecourt/documents/pdf/brereton300611.pdf)
University of Ottawa Faculty of Law
- The Professional Responsibility of Lawyers and the Representation of Mentally Incapacitated Clients (http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485749)
Disability Law Service
- Mental Capacity (http://www.dls.org.uk/advice/factsheet/community_care/mental_capacity/Mental_Capacity.pdf)
- Mental Capacity Act Code of Practice (https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice)
- Making decisions: a guide for advice workers (OPG604) – (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/348637/OPG604_Advice-workers-MCA-decisions.pdf)
- Certificate as to capacity – example letter to solicitors and guidance – the Official Solicitor’s criteria for acting as a litigation friend, and how to get the certificate as to capacity form completed. (https://www.gov.uk/government/publications/certificate-as-to-capacity-example-letter-to-solicitors-and-guidance)
- Dementia and the law (http://www.step.org/dementia-and-law)
- How robust is your capacity assessment? (http://www.step.org/how-robust-your-capacity-assessment)
The Law Society of Scotland
- Guidance related to Rule B1.5: Vulnerable Clients Guidance (http://www.lawscot.org.uk/rules-and-guidance/section-b/rule-b1-standards-of-conduct/guidance/b15-vulnerable-clients-guidance/)
The Bar Council
- Client Incapacity (http://www.barcouncil.org.uk/for-the-bar/professional-practice-and-ethics/client-incapacity/)
The Law Society
- Mental capacity: international aspects (http://www.lawsociety.org.uk/support-services/advice/practice-notes/mental-capacity-international-aspects/)
- Mental Capacity Act Toolkit (http://bma.org.uk/practical-support-at-work/ethics/mental-capacity-tool-kit)
- Assessing mental capacity – online tool (http://bma.org.uk/practical-support-at-work/ethics/mental-capacity/assessing-mental-capacity)
- Vulnerable adults and the disclosure of confidential information (http://bma.org.uk/practical-support-at-work/ethics/mental-capacity/vulnerable-adults-and-confidentiality)
American Bar Association
- Assessment of Older Adults with Diminished Capacity (http://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf)