Strategies to reduce risk

  • See your client on their own at first to assess capacity and obtain instructions. Focus on practising good communication (see Interviewing the client). In some cases of supported decision-making (see Substitute decision-making), it might be acceptable to have another person present.
  • Take careful detailed notes of your instructions, recording your questions and the client’s responses, and also their observations.  (The Legal Practitioner’s Liability Committee recommends practitioners keep written records of matters discussed in relation to determining capacity. If there is doubt about capacity, then appropriate inquiries (e.g. to the donor’s doctor) need to be made, with consent of the client/donor. See LPLC 2005b, p.2. ) In some cases it might be advisable to have an additional witness, for example, if your client’s instructions are somewhat eccentric. If your client has given you instructions to change their will significantly, you need to question them about their reasons and document their answers.
  • If your client is in hospital, seek advice from staff as to the best time to take instructions or execute a will so as to optimise capacity. It is important to raise this issue with your client openly, explaining the legal need to ensure capacity for the decision at hand.
  • Consider referring the client for a formal capacity assessment to a medical professional with expertise in assessing cognitive capacity where the client has a diagnosed condition affecting decision-making capacity or where you believe that the client has impaired capacity based on their answers in an interview. Remember that the final decision about legal capacity is up to you, but you need to have regard to clinical findings.
  • Document the scope and limits of your retainer, particularly where the client and other family members present with instructions.

(This section draws on materials in T. Cockburn & B. Hamilton, ‘Assessment of Capacity: disciplinary issues and potential liability’ in Proctor, March 2009, 15 at 17.)