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Can practitioners spot a client who lacks capacity? Craig Ward asks a cross-section of the industry about current practices

16 December 2011

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 solici...

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