Queensland Law Society

I have doubts about my client’s capacity – what should I do?

As a general rule, you cannot act on instructions from a client if they do not have the necessary mental capacity to give you those instructions. Rule 8 of the Australian Solicitors Conduct Rules 2012 ('ASCR') states that you must follow a client’s lawful, proper and competent instructions.

Again as a general rule, a person is presumed to have capacity, but if you have doubts then you should consider obtaining a medical assessment. You would need your client’s consent and instructions for this, and in seeking these it might be a point to put to the client that it is in their interests to have that confirmation of capacity as evidence to meet any later challenge to the validity of the transaction or the act the subject of the instructions. If consent is not forthcoming, you may have to cease to act.

If your instructions are to prepare an enduring power of attorney (EPA) or a will see the FAQ Are there any guidelines for witnessing an enduring power of attorney (EPA)? Many of the resources in that FAQ deal with capacity issues for both EPAs and wills - as of course these documents are often prepared together.

The Office of the Public Guardian's Guidelines for Witnessing Enduring Documents, although specific to EPAs, does contain some suggestions which are likely to be of more general application, to wills and to a range of other documents. For instance the guidelines suggest how to interview a client to assess capacity, including what sort of questions to ask, listing some of the signs to look for that might suggest incapacity (and therefore the need for a medical assessment) and they also cover the important issue of note-taking.

The following reference sources may also assist you.

  • Lexon Insurance, Wills and EPAs Procedure Pack. To access this resource, go to the Lexon Insurance website and log in using your QLS member login details. Go to the main navigation heading Managing your Risk and select Wills and EPA Risk Procedure Pack from under the heading Succession.
  • Clare Endicott, Deputy President, Guardianship and Administration Tribunal, ‘Client Capacity and Professional Standards’, July 2009. You can only act on a client’s instructions which are validly given. Once you accept a retainer to act for an older person, an obligation arises to be satisfied as to the client’s capacity. If the client cannot give valid instructions but you purport to act on the client’s instructions, you are at risk of liability to the client and to others who suffer loss, and you may also be liable to professional discipline. Similar issues arise where a client’s capacity becomes impaired during the course of a retainer, and you inadvertently become the manager of the client’s affairs or a substitute decision-maker for the client. There is no easy answer to the question of when you should decline to act on a client’s instructions. This paper provides practical guidance on how to deal with these issues.
  • Peter Sheehy, Solicitor, ‘Managing Family Law Clients with Complex Needs’, September 2007. The ‘complex needs’ in the title to this paper relates to persons engaged in proceedings before the Family Court or Federal Magistrates Court who have some form of disability.
  • As for capacity for will instructions see G E Dal Pont and K F Mackie Law of Succession (2013) Chapter 24: Lawyers’ Responsibility and Liability - available from the Supreme Court library on request: Document Delivery.
  • Legal Services Commission’s Interactive Scenarios. Elder Law Scenario Part 1 is relevant to this Question. This will take you step-by-step through how to deal with an elderly client whose capacity may be an issue, and who has been brought in to see you by her ‘pushy’ daughter.
  • Queensland Civil and Administrative Tribunal (QCAT) – Guardianship for adults matters. The former Guardianship and Administration Tribunal was amalgamated into QCAT on 1 December 2009. This site includes a useful Decisions and Cases page which has lists of relevant cases by topic, one of which is ‘Capacity’ - although unfortunately this resource has not been kept up to date.
  • Public Guardian. The Public Guardian is an independent statutory body which has an important role in protecting the interests of adults with impaired capacity. See this Factsheet for overview.
  • The Public Trustee
  • Queensland Law Reform Commission Discussion Paper, ‘Shaping Queensland’s Guardianship Legislation: Principles and Capacity’, (WP64 September 2008). The most relevant parts of this are:
  • Chapter 2 provides a useful overview of adult guardianship law in Queensland, including the statutory agencies involved and the mechanisms established for decision-making by and for adults with impaired decision-making capacity. Decisions may be made by substitute decisions-makers, and these include informal decision-makers, attorneys, guardians, administrators or the Tribunal.
  • Chapter 6 discusses the test of decision-making capacity, the specific elements of the statutory test, and how this is assessed under the legislation.
  • Chapter 7 discusses the test of capacity to make an enduring power of attorney or advance health directive, the level of understanding required to make these documents, and the witnessing requirements.