Client instructions and capacity
8. Client instructions
8.1 A solicitor must follow a client's lawful, proper and competent instructions.
A solicitor cannot act on instructions from a client who does not have the necessary mental capacity. Rule 8 of the Australian Solicitors Conduct Rules (ASCR) states that you must follow a client’s lawful, proper and competent instructions (emphasis added).
The legal test for capacity varies according to what is involved, for example whether the client wants to make a will or enduring power of attorney or to pursue a court case. It is often difficult for a solicitor to assess whether a client has capacity. In cases of doubt a medical assessment may be needed.
Frequently Asked Questions