As the median age of the Australian population continues to rise, some suggest that issues of capacity will increasingly impact the legal profession. Capacity is integral to a client’s ability to enter transactions or make legally binding agreements. While there’s a common law presumption that a client has the necessary capacity to make such decisions – factors including physical disabilities, mental impairment, or old age can make a solicitor question this assumption.[1]
According to rule 8 of the Australian Solicitor Conduct Rules 2015 (NSW), it prohibits a lawyer from acting if their client is incapable of providing proper and competent instructions.[2] Therefore, this article will delve into how the law goes by assessing a client’s mental capacity and the steps solicitors may take to accommodate their client’s incapacity.
Defining Mental Capacity:
In NSW, ‘mental capacity’ is assessed based on the type of decision related to an agreement or transaction.[3] This being different tests apply depending on the context, including when clients are managing their affairs, consenting to medical treatment, or creating a will/enduring power of attorney.[4]
Nevertheless, the Courts primarily focus on a client’s ability to understand the general nature of their actions,[5] assessing their capacity to plan versus the decision itself.[6]
This being it’s essential to recognise that one’s capacity is fluid and adaptable. For example, a client might be unable to decide currently but regains capacity later, following them taking their prescribed medication. Additionally, someone may lack the capacity to manage their finances but still create a will.[7]
Steps to Determine Mental Capacity:
According to the Law Society of NSW, a lawyer should do the following if they believe that a client cannot provide instructions. [8]
1. Addressing Red Flags:
When assessing a client’s mental capacity, it’s vital to avoid assumptions without having an expert evaluation, as a client may appear competent but still lack the mental capacity for a specific decision.[9]
Thus, lawyers should watch for red flags including:
- Communication difficulties;
- Memory issues;
- Disorientation;
- Excessive reliance on others for assistance during their appointment; and
- Behavioural changes throughout their matter.
2. Initial Assessment of Capacity:
The solicitor should gather comprehensive information about the client’s capacity by providing time to read documents, access to visual or hearing aids, and a comfortable environment through asking open-ended questions tackling areas of concern.
When gathering this information, it is also essential to approach the topic sensitively to avoid offending the client, emphasising the legal significance of capacity to address potential disputes.
3. Seek Experts:
If a lawyer doubts a client’s capacity, they should seek expert help from a qualified professional, such as a psychologist, neurologist, or geriatric mental health specialist.
A referral letter should be prepared, detailing the client’s background, appointment specifics, relevant legal tests, and the reason for the referral.
The resulting report would then be a clinical opinion, not a legal determination of capacity. If the expert finds the client lacks capacity, this may lead to recommendations for clinical options or treatments, such as medication, to improve the client’s ability to engage and provide competent instructions.[10]
4. Use a Substitute Decision Making:
The appointment of a substitute decision maker is a last resort when no reasonable alternatives exist.[11] A substitute decision maker is necessary if the client cannot understand the nature of litigation, costs, claims, defences, and outcomes of their matter. [12]
If needed, this appointment is made through NCAT or the Supreme Court to have an alternate decision maker that acts in the client’s best interests.[13] For instance, under s 3 of the Civil Procedure Act (2005), children, individuals with guardians, or those with impairments may require a tutor due to their incapacity. [14]
Techniques Lawyers can use to Enhance a Client’s Mental Capacity:
- Building Trust and Confidence [15]
- Conduct solo interviews, offer a support person, and emphasise confidentiality.
- Accommodating Sensory Changes [16]
- Minimise background noise and use clear language for hearing impairments. Ensure good lighting and avoid glossy paper for vision impairments.
- Accommodating Cognitive Impairments [17]
- Use simple questions and a clear tone, allow time for responses, and provide summaries.
- Increasing Engagement [18]
- Use gradual counselling to identify goals, address concerns, and provide feedback.
Conclusion:
Assessing a client’s mental capacity is essential for solicitors. By recognising red flags, conducting thorough assessments, seeking expert advice, and accommodating individual needs, lawyers can effectively support clients in their legal matters.
This article is not legal advice and serve the purpose of providing generalised legal information regarding the a solicitors obligation to receive competent instructions under the Solicitor Conduct Rules. If you require qualified legal advice, our experienced team of solicitors at Jake McKinley are here assist. Please get in touch with us on 02 9232 8033, office@jakelaw.com.au or on https://jakelaw.com.au/contact/ today to make an enquiry.
Resources:
https://www.lawsociety.com.au/sites/default/files/2018-03/Clients%20mental%20capacity.pdf
[1] Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, American Bar Association Commission on Law and Ageing & American Psychological Association (2005).
[2] Australian Solicitor Conduct Rules 2015 (NSW) r 8.
[3] Gibbons v Wright [1954] HCA 17.
[4] Trustee and Guardian Act 2009 (NSW) s 41, Scott v Scott [2012] NSWSC 1541, Guardian Ship Act 1987 (NSW) s 33 (2).
[5] CJ v AKJ [2015] NSWSC 498.
[6] Gibbons v Wright (n 1).
[7] Re Estate of Margaret Bellew [1992] NSWSC.
[8] Law Society of NSW, When a Client’s Mental Capacity is in Doubt (Legal Guide, 2016).
[9] Briginshaw v Briginshaw [1938] HCA 34
[10] Law Society of NSW, When a Client’s Mental Capacity is in Doubt (n 1).
[11] R v P [2001] NSWCA 473.
[12] Dalle-Molle by his Next Friend, Public Trustee v Manos and Anor [2004] SASC 102.
[13] Law Society of NSW, When a Client’s Mental Capacity is in Doubt (n 2).
[14] Civil Procedure Act 2005 (NSW) s 3, Australian Solictor Conduct Rules (n 1) r 7.18.
[15] Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers (n 1).
[16] Ibid.
[17] Ibid.
[18] Ibid.
