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Capacity to give instructions

Capacity to give instructions

By Law Institute of Victoria

Capacity Ethics 


Ethical dilemmas are part of everyday practice for solicitors. The LIV Ethics Committee is available to help. The Ethics Committee is drawn from experienced past and present LIV Council members who serve in an honorary capacity. Ethics Committee rulings are non-binding. However, as the considered view of a respected group of experienced practitioners, the rulings carry substantial weight. It is considered prudent to follow them. The LIV Ethics website, www.liv.asn.au/Professional-Practice/Ethics, is regularly updated and, among other services, offers a searchable database of the rulings, a “common ethical dilemmas” section and information about the Ethics Committee and Ethics Liaison Group. For further information, contact the ethics solicitor on 9607 9336. Litigation R4901: July 2016 — Capacity Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 – Rule 8. Client Instructions “A solicitor must follow a client’s lawful, proper and competent instructions”. A law firm acted for a client who had sustained work related physical and psychological injuries. The law firm sought guidance regarding the appropriate steps to take to preserve its client’s interests in a litigation matter where there was medical evidence that the client did not have capacity to give instructions and that if the client was served with an application to appoint a guardian it was likely that the client would become suicidal. Ruling In the opinion of the Ethics Committee and on the information presented: Without informing its client, the law firm should approach the court at the next Administrative Mention and disclose the full circumstances to the court and seek guidance as to what further steps should be taken, including the possibility of appointing a litigation guardian; and The law firm should highlight the potential suicidal tendencies of its client in doing so.

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