Identity parade

Should solicitors be assessing capacity? I recently posed this question to 100 solicitors and their responses proved to be incredibly revealing. Ten respondents thought solicitors should not be assessing capacity, with a further 13 unable to decide either way. However, regardless of whether they should be doing it or not, a majority confirmed they are confident in assessing capacity, although when asked about differences between mental and testamentary capacity 13 said there was no difference and eight were not sure.

Guide lines

Although a majority of respondents appear to understand capacity issues, a significant percentage appear unsure, which is a cause for concern. It also presents quite a quandary as the SRA’s professional rules, legislation and case law all point to solicitors ‘having regard for’, ‘following’, or ‘considering’ capacity issues. Should solicitors be ignoring these and not be assessing capacity at all? To decide requires an evaluation of what is guiding solicitors when making assessments. Unfortunately, however, when examining the above areas, particularly case law, there fails to be any sort of clarity guiding solicitors in this complex area of law.

The starting point is the professional rules governing practice. The SRA’s indicative behaviour (IB)1.6 requires solicitors to have “proper regard to your client’s mental capacity or other vulnerability, such as incapacity or duress”. Having regard denotes contemplation: “Whether you should decline to act or cease to act because you cannot act in the client’s best interests” (IB 1.7). These issues are emphasised by the Law Society’s 2011 Practice Note on Lasting Powers of Attorney at 5.1: “The solicitor should be satisfied that, on the balance of probabilities, the donor has the mental capacity to make an LPA.” The practice note continues, placing a responsibility on solicitors to consider “medical opinion... if there is any doubt about the donor’s capacity”. The practice note further suggests: “Solicitors assessing a client’s capacity to create an LPA should refer to sections 2 and 3 of the MCA 2005 and chapters 2 to 4 of the Code of Practice” (5.6).

If solicitors are concerned that a client does lack capacity, do they know what to do next? I asked the 100 respondents: “If a solicitor is unsure a client has sufficient [mental or testamentary] capacity to sign a document what should they do?” Some sample responses are:?

• approach a second solicitor as certificate provider;

• decline instructions;

• check with relatives to ask if they have a better understanding;

• get a GP to assess them and act as certificate provider;

• get the client to sign attendance notes saying they understand what they are doing;

• ask them questions based on MCA sections 2 and 3;

• call Law Society Ethics and seek advice;

• check to see if any other assessments have recently been carried out confirming capacity;

• ask their attorneys if they think the client can sign;

• the solicitor should know if a client has sufficient capacity, that’s their job;

• rely on the presumption of capacity to sign.

Mixed messages

The responses above show a huge variation in how solicitors tackle potential incapacity. Confusion could also arise from case law, which, while prescriptive, is also contradictory.

The case of Kenward v Adams [1975] CLY 3591 (the ‘golden rule’) suggests: “When a solicitor is drawing up a will for an aged testator or one who has been seriously ill it should be witnessed or approved by a medical practitioner.” So solicitors in these circumstances should decline to assess capacity, referring instead to a doctor.

However, Sharp v Adam [2006] EWCA Civ 449 suggests not: “The golden rule is a rule of solicitors’ good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule.” Solicitors then should see this as ‘good practice’. Key v Key [2010] EWHC 408 (Ch) leans towards a different approach: “[a] professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.” This suggests that the solicitor is not competent to assess capacity and should instead refer to a doctor.

This is not the view in Birkin v Wing [1890] 63 LT 80, as it was the solicitor’s evidence over the doctor’s which was preferred: “His lordship then referred to the evidence of Mr Hind, to which he observed he attached the greatest possible weight.” Mr Hind, a solicitor, had assessed his client and confirmed sufficient capacity.

In the more recent case of Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB) a similar approach was taken: ?“A solicitor is generally only required to make inquiries as to a person’s capacity to contract if there are circumstances such as to raise doubt as to this in the mind of a reasonably competent practitioner,” and “I should add... that there is plainly no duty ?upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity. Such a requirement would be insulting and unnecessary.”

It is no wonder that solicitors are confused.

Preferential treatment

But if a solicitor’s evidence is to be preferred, how should they be approaching capacity assessments? The Mental Capacity Act 2005 (MCA) and relevant assessment case law both provide an approach.

The MCA in 2007 introduced a legal presumption and a two-stage test evaluating capacity. “A person must be assumed to have capacity unless it is established that he lacks capacity” (section 1(2) MCA). The MCA’s test provides solicitors with an assessment mechanism, allowing them to confirm or reject capacity. Under the MCA solicitors should be asking: is there an impairment of, or disturbance in, the functioning of a person’s mind or brain; and, if so: is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision.

Section 2(1) MCA presents a definition showing how solicitors may use a client’s diagnosis to evaluate capacity. While section 3 MCA provides functional questions, such as: is the client able to understand information relevant to decisions, retain that information, use that information as part of decision making, and communicate their decisions.

This is not to say that common ?law tests should be ignored as they ?still provide considerable assistance (see Saulle (by his sister and litigation friend GS) v Nouvet [2007] EWHC 2902 (QB)). When evaluating capacity solicitors should refer where appropriate to the following cases:

Testamentary capacity. Banks v Goodfellow [1879] LR 5 QB 549: “That a testator shall understand the nature of the act and its effects.”
Making gifts. Re Beaney (deceased) [1978] 2 All ER 595: “The degree or extent of understanding required in respect of any instrument is relative to the particular transaction which it is to effect.”
Conducting litigation. Sheffield City Council v E and another [2004] EWHC 2808 (Fam): “Someone may have the capacity to litigate in a case where the nature of the dispute and the issues are simple, while at the same time lacking the capacity to litigate in a case where either the nature of the dispute or the issues are more complex.”

Lasting powers of attorney. Re ?Collis (27 October 2010 Court of Protection): “The capacity required ?to create an LPA is not the same as ?the capacity to manage one’s property and financial affairs generally, or the capacity to make a will or a gift or a loan, or the capacity to decide on a certain course of medical treatment, ?or the capacity to decide whether to ?live in a residential care home.”

Assessment centre

To see whether solicitors are applying these principles they were asked about their assessment techniques: “What measures or assessments, psychological ?or otherwise, should a solicitor either ?be using or consider using when assessing if a client has sufficient ?[mental/testamentary] capacity to ?sign a document?” Sample responses:?

• get their GP to assess them;

• see if they can remember what ?an LPA is;

• get another solicitor to check ?them as well;

• ask whether they can remember what you told them at the beginning of the interview;

• if they have a diagnosis and assessment of a memory condition see what it says;

• consider if they can understand ?the consequences and implications ?of making an LPA

• .

 

These responses demonstrate that solicitors are using a variety of assessment principles, but do not show when and on what basis a solicitor should decline or cease to act (IB1.7). To examine this I asked: “Are there circumstances when a solicitor should not be assessing someone’s [mental/testamentary] capacity?”

Responses included: ?

• overpowering relatives;

• solicitors should not be assessing capacity;

• when there is conflict between relatives;

• if they have not kept up to date with CPD training;

• if they are told by another professional there’s a concern;

• where a client is saying one thing and acting in another way;

• if the client is very elderly;

• when the solicitor cannot see the client on their own;

• a solicitor should always refer to the client’s GP for them to decide capacity if the client cannot answer some of the capacity questions.

 

These responses show there is a diverse appreciation of the circumstances in which solicitors should be declining or ceasing to act.

Uniform approach

It might be advisable to streamline assessments of capacity and Key v Key may be a good place to start. As the case maintains: “A solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner.” Therefore, it would make sense for solicitors to use similar principles employed by medical practitioners and psychologists when making capacity assessments in order to challenge the criticism of Key v Key.

The medical approach to capacity generally falls into three categories: remembering or recall; cognition; and orientation. Solicitors should be quite familiar with questions such as what is your name, date of birth, address, which require clients to recall from their long-term memory (LTM) basic stored information. Although this does not necessarily provide an insight into their ability to understand, as cognition is needed.
Cognition requires an individual to recall several items from their LTM, then to manipulate these to come up with an answer, for instance:?

 

• Why are you here?

• How did you get here?

• Who are these people with you?

• If I gave you £20 what could ?you buy??

Finally, orientation gives an insight into the client’s perception of who they are and where they are. Occasionally, someone with dementia appears in their own mind to travel back in time, replying it is ten or 20 years earlier than the actual date. Here it may be said they are disorientated in time, place or person. Orientation could be tested with the following questions:?

• time – today is, what is the time, the date is?

• place – where are we?

• person – what’s your date of birth, your name? ?

While some work remains to be done in the field of capacity, there are many positives that can be taken from the ?results of the survey. The majority of solicitors are assessing their clients’ capacity, fulfilling the SRA’s IB 1.6 requiring solicitors to have “proper ?regard to your client’s mental capacity ?or other vulnerability, such as incapacity or duress”.

However, the gaps need to be filled in urgently, as it may put a vulnerable adult at risk if a solicitor is unsure about capacity assessments, for instance from undue influence, pressure or fraud being practised upon that person. It may also be a breach of SRA IB 1.6.

As capacity assessments arrive with every client, solicitors should understand the basics of capacity assessment and, if challenged by the SRA, be able to say, and prove: “These are the questions I asked, this is why I asked them and this is what I was looking for.” n

 

Craig Ward is a solicitor and CEDR accredited mediator