All staff needs to be alert to the signs that the person they are talking to may not have the capacity, at that moment in time, to make an informed decision about the implications of the services that Stratus Legal Solutions can offer them. This is not a diagnosis of a condition; it is just an extension of call centre staff’s existing skill of listening, identifying needs, and adjusting their approach accordingly.
The Mental Capacity Act says that a person is unable to make a specific decision if they cannot understand information about the decision to be made, cannot retain that information in their mind, cannot use or weigh that information as part of the decision-making process, or cannot communicate their decision. Stratus Legal solutions staff should be alert for signs such as:
If this is the case – should it proceed?
If you receive any complaint at any level from a consumer about the handling of the matter you must report this to Management without delay.
The Following pages were released to Solicitors in July 2015
Vulnerable Clients – The Solicitors New Directives – For Information
The Law Society published new guidance in July 5105 for solicitors to help them meet the needs of vulnerable clients. This includes clients with a range of physical and mental health problems, including learning disabilities. Our practice note also gives advice on the best approach to take when working with clients who may lack mental capacity.
If we apply all the guidelines as presented to you in the Vulnerable Consumer paper and ensure we identify any potential consumers that may hit any of the criteria identified then our recommended firms will be able to pick up and identify matters quickly and then adhered to their new practice rules.
This practice note includes detailed advice to assist solicitors to:
This practice note is the Law Society’s view of good practice in this area. It is not legal advice
1.1 Who should read this practice note?
This practice note is essential reading for all solicitors, practice managers, and legal support staff, particularly if you do not act for vulnerable clients on a regular basis.
1.2 What is the issue?
Some clients have difficulty accessing and using legal services. Research has concluded that solicitors need to adapt their practices to identify and meet the needs of vulnerable clients.
1.3 Who are vulnerable clients?
The terms vulnerable and vulnerability are used here as a shorthand to address a range of situations which could affect any client who is at a disadvantage because of factors that affect their access to, and use of, legal services.
Please note that this practice note does not provide specific advice in relation to children or the needs of vulnerable defendants in criminal proceedings.
The possibility of vulnerability should be considered whenever you are consulted or instructed by a client in any matter.
This practice note focuses on three broad categories of vulnerable clients.
1.4 Compliance with regulatory and legislative obligations
Section 5 of this note discusses independent third party support for vulnerable clients which can often be crucial in assisting you in obtaining the best possible legal outcome for them.
1.4.1 There are ten mandatory principles which apply to all those the Solicitors Regulation Authority (SRA) regulates and to all aspects of practice. The principles can be found in the SRA Handbook. You should always bear these principles in mind and use them as your starting point. Failure to meet your professional duties within the SRA Handbook may result in SRA sanctions or referral to the Solicitors’ Disciplinary Tribunal.
1.4.2 In addition, if you fail to meet the needs of a vulnerable client you could be at risk of:
2.1 Vulnerability indicators
Risk factors may be short or long-term and can fluctuate over time depending on the circumstances. The following are offered as examples of risk factors and are not an exhaustive list:
Some people may be affected by more than one risk factor – for example, many people with a learning disability have hearing and/or visual problems that can affect their communication and understanding.
Anyone or more of these risk factors may mean that your client is vulnerable and may require your assistance to express their wishes, understand relevant advice and provide you with instructions, or that they may lack the capacity to make relevant decisions and to give your instructions.
2.2 Signs of vulnerability: what to look out for
It may not always be easy to identify the vulnerability. Some signs may be obvious while others are only just perceptible or hidden. You should not assume that your client will tell you of any difficulties. Simple observation will identify many mobility problems, physical or sensory disabilities or more severe impairment of mental capacity. It is important not to feel inhibited about asking for more information for fear of being intrusive – many clients will be open about any disability they have or specific assistance they require, or will be if asked, and will be glad to discuss how you can best meet their needs.
The Law Society practice note on financial abuse provides further guidance on the identification of adults at risk of financial abuse.
2.3 Identifying the needs of your client
Once you are aware that there are risk factors present, you can help your client to access your services and overcome any disadvantage caused by these risk factors. You should tactfully try to identify the needs of your client to find out whether they:
Carers or family members may also be able to provide helpful information but in the first instance, you should always seek to discuss these matters with the client alone, unless the client lacks the capacity to give you instructions (see Section 5).
3.1 Areas to think about
Ensuring that your practice provides an accessible service to vulnerable clients will mean considering many different aspects of your practice including:
3.2 Tailored and appropriate communication
‘He more or less explained a lot of it to me without some of the jargon that you would get with most. Some solicitors they go through all this jargon and you think ‘what are they on about’, you know, and he did explain a lot of it to me as well’.
The ‘reasonable adjustments’ duty under the Equality Act 2010 is anticipatory: you must anticipate the needs of people with particular types of disability as well as making tailored reasonable adjustments for individuals. This means you need to be prepared: you should know, for example, how to find and engage a sign language interpreter.
Types of adjustments that could aid communication with your clients include:
3.3 Assisting vulnerable clients in the course of court proceedings
3.3.1 Criminal cases
Special considerations and measures apply to vulnerable defendants and witnesses in criminal and family cases. These are especially relevant if you are carrying out any advocacy on behalf of a vulnerable client or instructing counsel to do so. The Advocacy Training Council has developed specialist toolkits under the Advocates Gateway programme which provide valuable advice on supporting vulnerable clients throughout the trial or hearing process. The toolkits can be accessed here.
A range of ‘special measures’ apply to vulnerable and intimidated witnesses (but not defendants) in criminal cases pursuant to sections 16 to 33 of the Youth Justice and Criminal Evidence Act 1999, including screens to shield the witness from the defendant, use of a live link, exclusion of the public from the courtroom, and the removal of wigs and gowns in the
Crown Court. The court may appoint an intermediary to assist a vulnerable witness to give their evidence at court and facilitate communication; the intermediary may explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner, without changing the substance of the evidence.
The Coroners and Justice Act 2009 extended intermediaries to the evidence of defendants, but this provision is not yet in force. However, the courts have a common law duty to appoint an intermediary to ensure that a vulnerable child defendant can have a fair trial (see R(C) v Sevenoaks Youth Court EWHC 465 (Admin); and R (OP) v SS Justice, Cheltenham MC, and CPS (Just for Kids Law intervening)  EWHC 1944 (Admin)).
3.3.2 Family cases
Intermediaries have also been used in civil cases, in particular in the Family Court, for both children and vulnerable adults.
4.1 What is capacity?
Mental capacity is the ability to make a decision – both day-to-day decisions and more significant decisions that may have legal consequences, such as buying property, entering into a contract, making a will, bringing or defending legal proceedings or seeking a divorce. Capacity is decision-specific, so a client may have capacity to make a simple decision but does not have capacity to make a complex decision or a decision that has significant consequences or carries significant risk.
If you reasonably entertain a doubt about your client’s capacity to give proper instructions, it is your professional duty to satisfy yourself that the client either has or does not have the capacity to give instructions.5 The statutory test of capacity to make a decision is contained in section 2(1) MCA 2005 which is set out at paragraph 4.3 below. There continues to be judicial debate as to the relationship between the statutory capacity test and common law tests of capacity although the High Court has clarified the position on the test for capacity to make a will and to make a lifetime gift (both of which are addressed at paragraphs 4.5.1 and 4.5.2 respectively).
The test of capacity to conduct proceedings is set out in paragraph 4.5.3 below.
4.2 Mental Capacity Act 2005 – the statutory principles
Section 1 MCA 2005 contains the first three principles that are the starting point for assessing capacity:
The starting point is the presumption that an adult client has full legal capacity to make their own decisions. Where there is doubt as to a person’s capacity, the burden of proof is on the person seeking to establish a lack of capacity, on the balance of probabilities.
A person must be given all appropriate help and support to enable them to make their own decisions or, in the event that they are assessed as lacking capacity to make the decision in question, to maximise their participation in any decision making process. An unwise decision should not, by itself be sufficient to indicate lack of capacity. However, doubt may be raised as to the person’s capacity if, for example, their decision is out of character.
4.3 Mental Capacity Act – the legal test for capacity to make decisions
You should be aware that a lack of capacity cannot be established merely because of a person’s age or appearance or their condition or an aspect of their behaviour. Section 2(1) of the MCA 2005 states that:
‘… a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’
Capacity is therefore both decision specific and time specific and the inability to make the decision in question must be because of ‘an impairment of, or a disturbance in the functioning of the mind or brain’.
Although there is one test of capacity, the statutory Code of Practice which supports the MCA 2005 identifies two elements: the ‘diagnostic’ and the ‘functional’ elements.
It is important to understand that a person is only considered to lack capacity for the purposes of the MCA 2005 if their inability to make a decision is because of an impairment or a disturbance in, the functioning of, the mind or brain.
Section 3 MCA 2005 defines what it means to be unable to make a decision.
In deciding whether the person is unable to make a decision the following four factors must be considered:
Information relevant to a decision will include the particular nature of the decision in question, the purpose for which it is needed, the effect(s) of the decision and the likely consequences of deciding one way or another or of making no decision at all (MCA 2005 s.3(4)). You must provide an explanation of the relevant information in ways that are appropriate to the person’s circumstances, using the most appropriate form of communication to help the person understand.
Retaining information for even a short time may be sufficient in the context of some decisions. It depends on what is necessary for the decision in question.
You can find further guidance about the MCA 2005 test of capacity in chapter 4 of the MCA 2005 Code of Practice.
Section 6 of this practice note addresses the position where a client has the capacity to make the material decisions but is vulnerable to the influence of those around them.
4.4 Capacity to instruct a solicitor to carry out specific instructions
You must be satisfied that your client has the capacity to give you instructions on the matter in question. If you have any doubt as to whether a client has the capacity to provide instruction or instructions, you must undertake a capacity assessment before any instructions are acted upon. To do otherwise may place you at risk of the sanctions set out at paragraph 1.4.2 above.
Different levels of capacity are required for different transactions. For example, different considerations apply to make a gift than in conducting litigation. You must assess the client’’s understanding in the context of the transaction upon which you are instructed, applying the relevant legal test of capacity (see paragraph below) and then consider whether the client is able to provide you with instructions on what they wish to do.
Even if you are satisfied that your client has the necessary mental capacity to make a specific decision, you may still need to be alert to the possibility of the client being subject to undue influence (see section 6).
If your client lacks capacity instruct you your role, your obligations and responsibilities are different from when you are acting for a client with capacity (see paragraph 4.7 below).
4.5 Other legal tests of capacity
4.5.1 Capacity to make a will
The High Court in Walker v Badmin  All ER (D) 258 reviewed various conflicting decisions on whether the correct test of capacity is the MCA 2005 test or that established in the case of Banks v Goodfellow QBD 1870. It was concluded that the Banks v Goodfellow test is the correct test, although it is possible that an appellate court might reach a different conclusion. This test is set out below:
The testator must:
4.5.2 Capacity to make a lifetime gift
As in the case of wills there has been uncertainty as to whether the common law test has been superseded by the MCA 2005 test. The High Court in Kicks v Leigh EWHC 3926 (Ch) reviewed the conflicting case law and concluded that the common law test is the correct test. Again, it is possible that an appellate court might reach a different conclusion.
The common law test is set out in Re Beaney  2 All ER 595 which says that the degree of understanding required for the making of a valid lifetime gift is relative to the transaction which is to be carried out. If the subject matter and value of the gift is trivial in relation to the donor’s other assets a low degree of understanding is sufficient. However, if the effect of the gift is to dispose of the donor’s only asset of value and so pre-empt the devolution of his estate under his will or on his intestacy, the degree of understanding required is as high as that required for a will and the donor has to understand the claims of all potential donees and the extent of the property to be disposed of.
4.5.3 Capacity to conduct proceedings
(NB this section does not cover criminal proceedings)
Formally, the test of capacity to conduct proceedings will vary according to the type of court. However, as the Supreme Court has made clear in Dunhill v Burgin UKSC 18, there is unlikely to be any real difference whether the test is the statutory test applied under the MCA 2005 (as is applied in civil proceedings) or the common law.
The key question, therefore, remains as set out in the judgment of Chadwick LJ in Masterman- Lister v Brutton & Co  All ER 162, namely whether:
‘a party to legal proceedings is capable of understanding, with the assistance of such proper explanation (in broad terms and simple language) from legal advisers and other experts as the case may require, the matters on which their consent or decision was likely to be necessary in the course of those proceedings.’
This test applies to the proceedings as a whole and not at each step in the conduct of the proceedings.
The test of lack of capacity to conduct proceedings is the statutory test under the MCA 2005. However, the principles that evolved under the common law continue to be of assistance in applying the statutory test.
Capacity depends on time and context and should not be determined in the abstract. The question is always whether the litigant has capacity to conduct proceedings in relation to the particular proceedings in which he is involved and not other proceedings or their ability to make decisions in general.8
The following are some of the factors that may be relevant, for example, in assessing a client’s capacity to conduct civil proceedings:
The Supreme Court also made clear in Dunhill v Burgin that the test must be applied to the claim that the party, in fact, has, not to the claim as formulated by their lawyers.
If your client is a party to but lacks the capacity to conduct proceedings in the County Court, High Court, Family Court or Court of Protection a litigation friend must be appointed to give instructions and otherwise conduct the proceedings on their behalf.9 The rules that govern the procedures vary according to the court or tribunal that the party is before.
4.6 Assessing capacity
It is for you to decide whether a client has the capacity to instruct you and whether you can accept and act on the client’s instructions. Although the MCA 2005 guiding principle is the presumption of capacity you would not be acting in your client’s best interests when you knew or should have known that there were grounds to doubt their capacity without first satisfying yourself that the client does indeed have the requisite capacity – see paragraph 1.4.2 above.
You must apply the relevant legal test in respect of each particular transaction at the time the decision needs to be made.
The assessment should be conducted whenever possible with the client alone. You should not assume that anyone accompanying the client (including a family member) has their genuine interests at heart.
It may be useful if you also observe how any relative or friend who has accompanied the client behaves towards the client and vice versa as that may identify whether there is the risk of undue influence or pressure.
If you are concerned about a client’s capacity, especially in relation to a decision with serious consequences either for them or other people, it is advisable to seek the opinion of an appropriately qualified professional. Where possible, you should choose a professional who knows your client and has expertise relevant to your client’s condition. You should explain to the professional the legal test of capacity and ask for an opinion as to how the client’s medical condition may affect their ability to make the decision in question.
Where a will is prepared for an elderly or seriously ill client, the courts have developed the ‘golden rule‘, which should be considered as guidance only. This provides that the will should be approved or witnessed by a medical practitioner, regardless of how tactless or difficult it may be to explain this precautionary measure to your client.10 The aim of the rule is to minimise or avoid post-death disputes about the capacity of the testator.
Ultimately, you must satisfy yourself that your client has the requisite testamentary capacity. You should, therefore, make and retain detailed and contemporaneous attendance notes, which confirm the steps you have taken to explore their capacity, the evidence you have collated, the circumstances and the rationale for your decision.
If there is a doubt about whether a client has the capacity to make a particular decision, it is advisable to see the client personally in order to satisfy yourself that your client has the capacity to make the decision you are concerned with.
4.6.1 Techniques for assessing the capacity
How and when you see the client may be important, for example, choosing the time of day when the client is most alert and seeing them in the place where they feel most comfortable. There may be times or intervals in the day when your client may be more lucid than others; it is important to recognise that capacity can fluctuate significantly during the course of one day.
To put your client at ease, you might first chat about matters other than the business that you intend to carry out. It is helpful to know from other sources (such as family or carers) something of the client’s family background and career so that you can verify the client’s recollection. You should also ask a few questions about current affairs and past events. You should prepare and retain detailed and contemporaneous notes of any attendances. It is also helpful to record the questions you ask the client and the client’s response, using the client’s own words if possible.
At any subsequent interview, you should seek to discuss some of the same matters and see if there is consistency in what the client says. You should also seek detailed instructions again – if they are materially different there is a good chance that the client may lack capacity in respect of that particular transaction.
Remember that you are testing the client’s understanding of the decision to be made at the time it is made, not whether you agree with the client.
See also the guidance on assessing capacity in the Law Society practice note, Financial abuse.
4.6.2 Obtaining a medical or other expert opinions
You should inform your client of any concerns that you have about their capacity, the purpose of any capacity assessment, and the implications if they are found to lack such capacity.
If your client is a party to proceedings you may require the permission of the court to obtain an expert opinion.
When obtaining a medical or other expert opinions you must provide the client’s written consent or confirm that the client has agreed to be assessed: You will also need to:
In some circumstances, it may be more relevant to obtain an opinion from a professional other than a medical practitioner, such as a social worker, clinical psychologist or speech and language therapist, depending on the client’s particular condition and the decision in question. However, the same considerations apply in relation to all appropriately qualified professionals.
There may be occasions when the client objects to you obtaining a report. If you still have serious concerns that the client lacks the capacity to provide you with instructions and you have taken all reasonable steps to encourage your client to obtain a report, you must explain to your client in writing that you are unable to act for him, or to continue to act for him without a report being obtained and explain the legal consequences.
If proceedings are being contemplated, or if you are concerned your client has lost capacity during the course of proceedings, an application can be made to the court for a determination of whether the client lacks the capacity to conduct the proceedings. The court may then order an assessment. However, if the client refuses to undergo medical assessment then there is no power to order an individual to comply with an assessment of capacity. In some cases, the judge will have to form a view as to capacity without the benefit of any external expertise,
although the courts have emphasised that judges should be slow to do so because of the seriousness of the consequences for the person.11
The Official Solicitor has a standard form of report (Certificate of Capacity to Conduct the Proceedings) for recording the assessment of the mental capacity of an adult to conduct their own proceedings where that adult is a party or intended party to proceedings in the Family Court, the High Court, a county court or the Court of Appeal. The certificate has guidance notes for the assessor and can be sent with the letter of instruction.
4.7 What happens when a client lacks the capacity to give you instructions?
If you consider that a potential client lacks the capacity to give you instructions, you may be entitled to decline to act on their behalf. If you do wish to act on their behalf, you must first make sure that you are able to identify a person who has the requisite authority to give you instructions (see paragraph 4.7.1 below).
If you consider that an existing client has lost the capacity to continue to give you instructions, then the following considerations apply:
Where an existing client loses the capacity to instruct you, you should as far as practicable take action to protect your client’s interests. As set out below, if you are to continue to act, you need to make sure that you have identified a person who is able to give you instructions.
4.7.1 Taking instructions on behalf of a client who lacks the capacity
Depending on the circumstances of the case, you may be able to act, or continue to act on behalf of a client lacking capacity to instruct you by obtaining your instructions from a litigation friend, attorney or court appointed a deputy. For example:
You should also be aware that the new Rule 3A within the Court of Protection Rules allows the Court of Protection in some cases to appoint an accredited legal representative to act for a client without a litigation friend (assuming that a panel of representatives will have been created).
See paragraph 5.3 below for more detail about taking instructions from an agent.
5.1 Carers of vulnerable people
Carers can play a valuable role in supporting vulnerable people to access legal services and to make relevant decisions for themselves. Carers may also be able to assist with communication and help you to identify what reasonable adjustments could be made to assist the client. In practice, the definition of a carer has a wide meaning and includes informal carers such as relatives or friends providing personal care or supervision either full time or merely on a casual basis, as well as professional carers such as care workers, social workers, and community nurses.
In the first instance, you should seek to obtain information and discuss matters with the client alone, being especially mindful of the principle of client confidentiality and the need for consent if confidentiality is to be waived.
5.2 Taking instructions: the involvement of carers
It is important to be clear about who your client is, whenever relatives or other carers seek to give instructions on their behalf. As a general rule, you can act only on a client’s instructions. No one, whether a family member or professional, has the right to give instructions or make decisions about another person’s property, financial or legal affairs unless they have been given formal authority to do so either by the client or by a court (for example an attorney acting under an EPA or LPA, a litigation friend or deputy).
For further information please see the Law Society practice note, lasting powers of attorney.
5.3 Taking instructions from an agent
In some cases where the client lacks the capacity to give instructions, you may be taking instructions from an agent such as an attorney (if it is within the scope of their authority) or a deputy (if it is within the scope of their authority). The person for whom the attorney or deputy is acting (the principal) is still your client and you must act in the client’s best interests.
If you are concerned that the instructions you are given by the agent are not in your client’s best interests or that there is a conflict of interest, you should inform the agent of your concerns. If necessary, you should decline to act on the instructions of the agent if you continue to believe that these are not in the client’s best interests. You will have to decide whether you can continue to act for the client, or alternatively for the agent on the basis that another independent solicitor will be appointed to represent the principal.
In certain situations, you will be deemed to be acting for the agent rather than the principal. These include:
While they still have the capacity to do so, adults aged 18 and over may make an LPA appointing their chosen attorney(s) to make specific decisions on their behalf. The attorney’s role and powers will depend on the type of power of attorney made and whether the donor has specified any restrictions in the attorney’s authority to act. In the case of a health and welfare, LPA attorneys must always consider whether the donor can, in fact, make the decision themselves and should only act in their best interests if the donor is unable to. It is also important to note that attorneys are not entitled as of right to act as litigation friends and must be appointed in the normal way (see para 5.4.3 below).
Further information on the various forms of LPA and their effect please see the Law Society practice note on lasting powers of attorney.
Where there is an ongoing need for decisions to be made on behalf of a person lacking the capacity to make such decisions, and the person has not previously made an LPA or EPA appointing an attorney to make the relevant decisions, the Court of Protection may appoint a deputy with authority to make those decisions.
Court-appointed deputies can be given wide powers, including the power to conduct legal proceedings on behalf of a person lacking capacity if authorised by the court to do so. The scope of the deputy’s authority will be specified in their order of appointment. Deputies can be appointed to make decisions either in respect of the property and financial affairs or in respect of the health and welfare of the patient, or occasionally both. However, the court is required under the MCA wherever possible to make a single decision in preference to the appointment of a deputy, so the appointment of health and welfare deputies is rare.
Deputies must always act in the best interests of the person lacking capacity and in accordance with the MCA 2005 principles (see above) and must have regard to the guidance given in the MCA Code of Practice, in particular, Chapter 8.
5.3.3 Litigation friends
People who lack the capacity to conduct proceedings may become parties to proceedings in the High Court, the county courts and the Family Court, as well as in the Court of Protection. Litigation friends are appointed to give instructions and otherwise conduct the proceedings on their behalf. They will stand in the shoes of the individual lacking capacity and give instructions on their behalf. A litigation friend can be a family member or professional, but will not (save in exceptional circumstances) be the solicitor themselves.13 The Official Solicitor is the litigation friend of last resort, and more detail about his role is available here. Guidance about the role of litigation friends in the Court of Protection is available here.
There is a range of independent advocates appointed under the MCA 2005, the Mental Health Act 1983 and also the Care Act 2014 who may be involved with vulnerable clients. Aside from statutory advocates, many advocates are also appointed from the voluntary sector on a privately paid basis and often from personal care budgets. It is always important to check the basis upon which the advocate has been commissioned to provide the services to your client because each will be providing a somewhat different function.
Advocates will often play a vital role in supporting vulnerable clients, and may well play a particularly important role in assisting the client to communicate with you for purposes of providing instructions. However, an advocate will never, by virtue of their role alone, be in a position to provide you with those instructions.
5.5 Appropriate Adults in criminal matters
Under the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice, police custody sergeants must secure an Appropriate Adult (AA) to safeguard the rights and welfare of vulnerable people (children aged 10-17 and mentally vulnerable adults) who are detained and questioned by the police. The role includes:
An AA should be someone who is completely independent of the police and, where possible the vulnerable person (although parents often do act as AA for a child or young person). It is desirable that they should have a sound understanding of, and experience or training in, dealing with the needs of juveniles, vulnerable adults or mentally disordered people. An AA cannot, merely because of their position, give instructions to a solicitor on behalf of the individuals they are to assist.
There is a significant class of people who are unable to take their own decisions but whose inability to do so stems from the influence exercised over them by others (for example family members), rather than from an impairment of, or disturbance in, their mind or brain.
The law treats such vulnerable individuals differently to those lacking capacity for the purposes of the MCA 2005: because the person has the capacity to make their own decision, no other person may take decisions on their behalf.
In these circumstances, it is possible for any person or body concerned as to whether the individual is under duress to seek the assistance of the High Court to provide its protection under its inherent jurisdiction.14 The High Court has the power to grant injunctive or other relief with the aim of putting in place a framework to enable the individual to make their own decisions.
In your first meeting with a vulnerable client, information may come from an intermediary, such as a family member, carer or concerned neighbour. In the majority of cases, their assistance is well-intentioned and they will be communicating on behalf of, and with the consent of, the client.
However, you should be aware of the possibility of conflicts of interest or, in some cases, undue influence. Your overriding duty is to your client and you must ensure that your instructions are from your client, free of undue influence of others. So, if your client has the capacity to do so, you should confirm your instructions directly with the client by seeing them on their own, especially if detailed information has been provided by someone else.
Clients may seek legal advice (for example to make a will, an LPA or a significant gift) because they have been influenced or told by someone, such as a family member, that they ought to do so. Such ‘influence’ may be well-intentioned and sensible. However, if you suspect that a client’s instructions are the result of coercion or pressure (‘undue influence’), you need to exercise your professional judgment as to whether you can proceed or continue to act on the client’s behalf.
Your duties in relation to assessing the possibility of undue influence bearing upon your client are underpinned by the indicative behaviours in chapter 1 of the SRA Code. In particular, IB 1.6 and IB 1.28 directly address the issue of undue influence:
6.1 Presumption of undue influence
Undue influence may be a factor even when there is no evidence of any coercion or pressure. If an individual is contemplating making a significant lifetime gift, undue influence is presumed where there is a relationship of trust and confidence between the client and the recipient of the gift, (for example, care giver and care receiver, patient and doctor, solicitor and client), and the proposed gift requires an explanation (for example, it is an absurdly the generous gift, or a gift of their main asset, such as their home, perhaps to just one of their children).
Once the presumption of undue influence has arisen, it is not sufficient for the recipient to demonstrate that the individual had capacity to make the gift, and that there was no actual coercion or influence. It is important that the individual has their own independent legal advice, considering all the relevant information and risks, before making a free and fully informed decision to go ahead with the gift.
6.1.2 Testamentary dispositions
This ‘presumption’ of undue influence does not arise for testamentary dispositions. Persuading an individual to include a specific individual as a beneficiary in their will would not necessarily amount to undue influence. Coercive behaviour is usually required. However, if the client is particularly elderly or frail, then less obviously aggressive methods might amount to undue influence.
6.2 No actual evidence of undue influence but concerns remain
Where there is no evidence of undue influence or pressure15 but the client appears to want to continue with a transaction that you consider to be against their best interests, you should see the client alone (or with a neutral third party if the client wishes someone else to be present to support them or assist communication). In doing so you should explain the consequences of the instructions the client has given and get confirmation (preferably in writing) that the client wishes to proceed.
You should be mindful in circumstances such as these that a core principle of the MCA 2005 (and the common law) is that a decision you may consider to be unwise may nonetheless be a capacitous decision. It is therefore important that you probe carefully as to the driver for the decision where your suspicions are raised and keep a detailed note of your discussion.
It may be preferable to use an independent advocate or interpreter or other assistance from an independent source, rather than relying on a family member or carer to communicate the client’s wishes.
7. Case studies for practitioners
1.Working with disabled clients
Mrs. Jones’ marriage has broken down after forty years and she decides to seek legal advice about a divorce. She has a severe visual impairment but does not want anyone to know that she is thinking about a divorce, so she wants to meet with a solicitor on her own. She telephones a local solicitor’s firm to book an appointment and is put through to the team secretary of the firm’s family law department, Ms. Clare Robinson.
Clare takes some details from her and explains that the first available appointment is the following Tuesday at 09:00. Mrs. Jones asks if she could have a later appointment because, as a result of her visual impairment, she finds it easier to travel around when the streets are less
busy. Clare asks if she would prefer a home visit. Mrs. Jones is grateful for the offer but explains that she does not want her husband to know anything about the visit. She says that she is able to find her way to the office but asks if a member of staff can guide her into the building from the street as she is not familiar with the office. She also asks if any written documentation can be sent by e-mail or provided in large print format. Clare assures her that this will not be a problem. She also asks if the firm could provide a digital recorder for her to record any meetings so that she can remind herself of discussions and key points that are made. Clare says the firm would be happy to lend her a digital recorder for these purposes and can also let her use it to record instructions rather than e-mailing them if that would be easier for her, but will ask for it back when the matter is completed.
Clare makes the appointment for later on Tuesday and then explains Mrs. Jones’ needs to Mrs. Temple, the solicitor who will be acting for Mrs. Jones. She also speaks to the reception staff to make them aware of Mrs. Jones’ additional needs and Mary Baker, the lead receptionist, says she will wait outside the office to greet Mrs. Jones.
On the morning of her appointment, Clare reminds the reception staff that Mrs. Jones is coming in and discovers that Mary is off sick and that reception is short staffed as a result. She, therefore, waits outside for Mrs. Jones herself, having checked that the reception area, toilets, and meeting room are free from clutter and other trip hazards.
At the meeting, Mrs. Temple provides Mrs. Jones with the digital recorder. She advises her about divorce proceedings and how to approach the division of money and assets. She discusses with her whether she will need additional support given that she will now be living on her own.
Mrs. Jones is so impressed by the firm’s service that she recommends the firm to her local support group for people who are visually impaired.
2.Working with clients who may lack the capacity
Tom O’Sullivan was 38 years old when he was involved in a road traffic accident. On his way home from work as a graphic designer, he was knocked off his bicycle by a lorry turning left across the cycle lane he was traveling in. He suffered a severe closed head injury, a fractured shoulder and massive bruising to both legs. He was in the hospital for nearly 6 months and then had several months attending out-patient appointments for physiotherapy and other forms of rehabilitation. When he returned to work over a year after the accident he was only able to perform routine clerical work. In order to keep up mortgage payments and provide for their two young children, Tom’s wife returned to full-time work. After a few months of becoming increasingly frustrated with his mundane job, Tom resigned and has barely worked since then.
Shortly after the accident, with the help of his father and supported by his wife, Tom seeks advice from you about claiming damages against the lorry driver and the company that employed him. It took some time to gather together the medical reports and the information in relation to financial loss, but eventually, the claim is issued almost three years after the accident. Although by that time Tom had largely recovered from his physical injuries, he complained that he continued to suffer from a complete loss of the senses of smell and taste, some hearing loss, forgetfulness, headaches, anxiety, and mood swings. However, he seemed able to provide accurate information relating to the claim and to understand the advice given to him by you and counsel.
The defence denied liability and alleged contributory negligence as Tom had had an after- work drink before cycling home. Tom’s counsel had advised that this could be assessed as high as 50 percent. Following negotiations, the defence made a payment into court and Tom, accompanied by his wife, father and solicitor attended a conference at counsel’s office to discuss the offer. During the course of the meeting, Tom became increasingly angry, distressed and tearful, but continued to ask relevant questions and put forward cogent arguments for seeking a higher offer. Counsel expresses some concern about Tom’s behaviour.
After the conference, you receive a phone call from Tom’s wife, saying that she was concerned about personality changes since the accident and particularly his mood swings and depression which had got worse since the conference. She also let slip that he had talked about committing suicide, although he had asked her not to tell anyone for fear of upsetting the family. She asks you to speed up the negotiations and reach a settlement – any settlement – as soon as possible, even if they could not get the number of damages they wanted, as she was worried about the effect of prolonged court proceedings on Tom’s condition.
Points for consideration about litigation and settlement
3. Working with clients who may be vulnerable to undue influence.
Mrs. Bryan is 79 and has early onset dementia. Her previous solicitor acted for her and her late husband in the preparation of their wills.
Mrs. Bryan’s son Don has arranged an appointment for his mother at your offices to review her will, following the death of her husband. She is brought to the meeting by Don, who remains in the waiting room, while you see Mrs. Bryan alone. She tells you during your meeting that she has recently rented out her own home and has moved in to live with Don and his family. Neither Mrs. Bryan nor her son Don is existing clients of your firm.
You receive a letter from Mrs. Bryan shortly after the meeting, telling you that as she has decided to live with Don permanently, that she is selling her own house and would like you to handle the conveyancing. She further advises you that she is using the proceeds of the sale to pay towards an extension, a conservatory and replacement windows and a new kitchen in Don’s property.
Points for consideration:
As Mrs. Bryan’s arrangements and plans may result in some vulnerability, you should consider the following action:
4. Working with clients with learning disabilities
John and Mary Smith need advice about possible care proceedings being taken in respect of their two-year-old child. They have received a pre-proceedings letter from the local authority which urges them to take legal advice and which gives your firm’s name (among others) as appropriate specialists. An appointment has been made, by telephone, by an independent advocate Mrs. Jones, who said she was calling on behalf of the Smiths as they both have learning disabilities and find formal telephone conversations and correspondence problematic. She has left her contact number.
Although you are a very experienced care proceedings lawyer, you have not worked with clients with learning disabilities before, or with an independent advocate. Colleagues tell you that, in general terms, independent advocates help the people they work with to participate in decisions that affect their lives, to understand what they are being told and enable them to make their views, opinions, and decisions known.
Your colleagues say that, similarly to working with intermediaries in court, having the assistance of an independent advocate is essential for ensuring that you can communicate effectively with your clients and that they can communicate effectively with you.
Points for consideration:
Before the meeting
At the meeting