Ethics FAQs - Client capacity

As a general rule, you cannot act on instructions from a client if they do not have the necessary mental capacity to give you those instructions. Again as a general rule, a person is presumed to have capacity, but if you have doubts then you should consider obtaining a medical assessment. You would need your client’s consent and instructions for this, and in seeking these it might be a point to put to the client that it is in their interests to have that confirmation of capacity as evidence to meet any later challenge to the validity of the transaction or the act the subject of the instructions. If consent is not forthcoming, you may have to cease to act.

If your instructions are to prepare an enduring power of attorney (EPA) or a will see the FAQ Are there any guidelines for witnessing an enduring power of attorney (EPA)? Many of the resources in that FAQ deal with capacity issues for both EPAs and wills - as of course these documents are often prepared together. 

The Office of the Adult Guardian document Capacity guidelines for witnesses of Enduring Powers of Attorney, although specific to EPAs, does contain some suggestions which are likely to be of more general application, to wills and to a range of other documents. For instance the guidelines suggest how to interview a client to assess capacity, including what sort of questions to ask, listing some of the signs to look for that might suggest incapacity (and therefore the need for a medical assessment) and they also cover the important issue of note-taking.

The following reference sources may also assist you. 

• Lexon Insurance, Wills and EPAs Procedure Pack.

• Clare Endicott, Deputy President, Guardianship and Administration Tribunal, ‘Client Capacity and Professional Standards’, July 2009. You can only act on a client’s instructions which are validly given.  Once you accept a retainer to act for an older person, an obligation arises to be satisfied as to the client’s capacity. If the client cannot give valid instructions but you purport to act on the client’s instructions, you are at risk of liability to the client and to others who suffer loss, and you may also be liable to professional discipline. Similar issues arise where a client’s capacity becomes impaired during the course of a retainer, and you inadvertently become the manager of the client’s affairs or a substitute decision-maker for the client.  There is no easy answer to the question of when you should decline to act on a client’s instructions. This paper provides practical guidance on how to deal with these issues.

• Peter Sheehy, Solicitor, ‘Managing Family Law Clients with Complex Needs’, September 2007. The ‘complex needs’ in the title to this paper relates to persons engaged in proceedings before the Family Court or Federal Magistrates Court who have some form of disability.

• Legal Services Commission’s Interactive Scenarios.  Elder Law Scenario Part 1 is relevant to this Question. This will take you step-by-step through how to deal with an elderly client whose capacity may be an issue, and who has been brought in to see you by her ‘pushy’ daughter.

• Queensland Civil and Administrative Tribunal (QCAT) – Guardianship for adults matters. The former Guardianship and Administration Tribunal was amalgamated into QCAT on 1 December 2009. This site includes a useful Decisions and Cases page which has lists of relevant cases by topic, one of which is ‘Capacity’ - although unfortunately this resource has not been kept up to date.

• Adult Guardian. The Adult Guardian is an independent statutory body which has an important role in protecting the interests of adults with impaired capacity.

• Queensland Law Reform Commission Discussion Paper, ‘Shaping Queensland’s Guardianship Legislation: Principles and Capacity’, (WP64 September 2008). The most relevant parts of this are:

• Chapter 2 provides a useful overview of adult guardianship law in Queensland, including the statutory agencies involved and the mechanisms established for decision-making by and for adults with impaired decision-making capacity. Decisions may be made by substitute decisions-makers, and these include informal decision-makers, attorneys, guardians, administrators or the Tribunal. 
• Chapter 6 discusses the test of decision-making capacity, the specific elements of the statutory test, and how this is assessed under the legislation.
• Chapter 7 discusses the test of capacity to make an enduring power of attorney or advance health directive, the level of understanding required to make these documents, and the witnessing requirements.

• Queensland Law Reform Commission, ‘Shaping Queensland’s Guardianship Legislation: A Companion Paper’, (WP65 September 2008). This is a summary of the key issues in the above Discussion Paper.

• Queensland Criminal Justice Centre: ‘Representing mentally ill and intellectually disabled clients charged with criminal offences in Queensland’. This online resource is a practical guide for criminal lawyers who have clients with mental illness, an intellectual disability or acquired brain injury in court.
The aim of the website is to enhance access to justice by providing an educative resource for duty lawyers, and, other lawyers who may be relatively unfamiliar with criminal law processes. The website equips lawyers with the ability to identify the presence of a disability; and to source the appropriate social support agencies to assist the treatment of the person’s underlying issues, which may well have contributed to their offending.

Yes.  The Queensland Office of the Adult Guardian has issued Capacity Guidelines for Witnesses of Enduring Powers of Attorney.

The guidelines are useful in their suggestions relating to how interviews with the donor to assess capacity should be carried out. Examples of the questions to ask, the signs to look for that might suggest incapacity (and therefore the need for a medical assessment) and the important issue of note-taking are included.

Failure to follow these guidelines may have disciplinary consequences. For example, in Legal Services Commissioner v Ford [2008] LPT 12 not following the guidelines was one element in a finding of unsatisfactory professional conduct. A summary of this case appeared in Proctor November 2008 p.10.  In that case, the reference to the QLS's capacity guidelines is in fact a reference to the Adult Guardian guidelines on the QLS website (see above).

There have been further similar disciplinary cases since the Ford case – see Legal Services Commission v de Brenni [2001] QCAT 340 and Legal Services Commission v Comino [2011] QCAT 387.

The differing capacity tests for EPAs and wills, and a solicitor’s role and duties in assessment of capacity are discussed in an article by Barbara Hamilton and Tina Cockburn Capacity to make a Will and Enduring Power of Attorney: Issues new and old (QLS Journal December 2008 pp.14-18).  This article also analyses the Ford decision.  A condensed version of this article entitled Assessment of capacity: Disciplinary issues and potential liability appeared in Proctor March 2009 at pp.15-17.

Lindy Willmott and Ben White co-wrote an article 'Solicitors and enduring documents: Current practice and best practice' (2008)16 JLM 466  and examined solicitors’ practice in relation to enduring documents (EPAs and Advance Health Directives) and a number of relevant tribunal and court decisions where enduring documents have been set aside for lack of capacity.  This article is available from the Supreme Court Library - Document Delivery.

Another useful resource is Lexon Insurance’s Wills and EPA Procedure Pack.

Of equal relevance to solicitors is the June 2009 bulletin issued by the Queensland Department of Justice and Attorney-General to JPs and Commissioners for Declarations Witnessing Enduring Powers of Attorney and Advance Health Directive documents as a result of concerns that these documents were frequently being improperly witnessed.