A. Solicitors can only take instructions from clients with the capacity to instruct.
Very few of us have any training or qualification to make an assessment of capacity, yet we can be disciplined for refusing to comply with valid instructions, or for complying where capacity is later shown to be lacking.
Where a client is clearly lacking capacity, instructions should not be followed. The client may need a guardian or other form of authorised representative. Although that raises its own issues, a client who is clearly lacking capacity is a relatively straightforward problem. The situation is far more difficult where a solicitor merely has some doubt.
If you have any real doubt, it is sensible to obtain independent confirmation of your client’s status. Clients will often be less resistant to this suggestion if you explain that the independent assessment is in their own best interests, so that the instructions they are giving will not later be challenged.
The law and some observations are discussed in Kantor, a Court of Appeal decision from December 2004. Some factors considered by the Court were:
- Who bears the burden of proving the Will?
- The capacity of a testator with dementia
- The evidence of the solicitor present at the execution as to the capacity of the testator
- Medical evidence as to the capacity of the testator to have testamentary capacity in periods of lucidity
For full text of the Kantor decision go to the Austlii website
- For clients with reduced testamentary capacity, some suggestions are:
- Have a medical professional (such as a doctor or nurse) attend immediately prior to obtaining instructions/attestation.
Hint: treating nurses are generally very good at discerning whether a patient is cognizant of surroundings/situations. Keep contact details in case of disputes. Some clients may have varying capacity at different times of the day. Medical professionals can be very helpful with advising a good time to attend client.
- For clients with long term intellectual impairment, you may need to:
- First have authoritative medical opinion as to capacity;
- Then obtain instructions very carefully;
Guidance is available for disability related legal issues at Villamanta Legal Service
- In the case of children, the Children’s Court uses a capacity benchmark of age six and above, depending on individual maturity.
Further information is available from the Children’s Court website
See also “Lawyers Acting for Children and Young People in the Children’s Court”.