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Capacity makes one free

Capacity makes one free

By Gino Dal Pont

Capacity Ethics 

Only months ago the Queensland Civil and Administrative Tribunal (QCAT) declared that a lawyer who drafted an enduring power of attorney for a client, who it was later found lacked the capacity to understand its nature and effect, had engaged in unsatisfactory professional conduct.1 Of course, it is not every instance where a lawyer makes what transpires to be an inaccurate call on client capacity that disciplinary sanction ensues. Questions over capacity are fluid, time and context specific, and ordinarily not within the training and competence of lawyers. What drove the issue of a reprimand and a fine in the aforesaid Queensland case was that, inter alia, the lawyer did not interview the client alone, did not probe the client with open-ended questions directed to issues of capacity, sought no medical opinion on the point, and maintained no written record of steps taken to assess client capacity.

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