Assessing capacity via video conferencing during COVID-19

The law of capacity and a solicitor’s duties have not changed. Practitioners should refer to existing resources available from QLS and Lexon when conducting client capacity assessments. Practitioners should remain on alert for instances of elder abuse and initially obtain consent from the client if they intend to make and/or keep a recording of the video conference.

The quality and reliability of the internet and video conferencing platform may result in technical issues such as connectivity, disconnection (drop outs), static video (poor picture or sound quality), and a picture but no sound (or vice versa). This can lead to client (as well as practitioner) miscommunication, misunderstanding, fatigue and frustration.

Consider:

  • Whether the program you are using is user friendly, secure and supports multiple platforms and devices, including iOS and Android.
  • The use of a microphone and headset, preferably both by you and the client, to improve sound quality and reduce background noise.

The use of technology, including using and learning new technologies, often demands observational skills and cognitive abilities which tend to decline as we get older (particularly when people are aged 80 years and over, although a diminished or a lack of capacity cannot be assumed based on age alone) or are unwell. Your client may require more time than usual simply because they are using technology they are not accustomed to using (irrespective of their age).

The practitioner using the video conferencing application should aim to be proficient in its use before the conference rather than learning how to use the application with clients. Clients may be quite reliant on the practitioner for technical support. If you are familiar with the video conferencing platform you are using, you may prepare (or have on hand) some tips for things that often go wrong (eg adjusting volume, maximising screen etc.).

Your client’s sensory limitations may make assessment by video difficult and could lead to “sensory strain” for your client. For example, age-related vision impairments and hearing changes can impede the use of video conferencing.

Consider:

  • Choose a time when the client is more alert and comfortable – older clients may prefer a morning appointment as they may fatigue in the afternoon.
  • You may find it more difficult to assess capacity if your client is using a hand-held device. Desktop computers and 19”+ monitors seem to yield a more positive client experience. 2
  • Background noise (at either end of the video conference) may lead to difficulties. This could impede your ability to conduct a capacity assessment:
    • Did the client understand the question or were they unable to clearly hear it?
    • Does your client need to use a landline telephone in conjunction with a video conference link? This might be useful for clients with hearing aids or cochlear implants. Does your client need a device that enables them to adjust tone as well as volume?
    • Does your client need a captioned version of the voice message? Clients with severe confusion or communication difficulties might find interacting via video conferencing much more difficult than an in-person consultation or a telephone consultation. Again, this situation might call for patience and perhaps rescheduling of the appointment or having a couple of shorter appointments rather than one long one.
  • Similarly, be aware of the shy client, many of us have had technology thrust upon us since the outbreak of COVID-19, clients are also needing time to adapt to video conferencing. You may need to reassure clients about privacy and confidentiality concerns.
  • You may wish to take into account that clients that are not accustomed to video conferencing may also act ‘oddly’ when being ‘videoed’ (and they can see themselves on the screen).
  • The essential (aka soft) skills that you would use when conducting an in-person client interview still apply when interviewing via video. The use of ice-breakers to commence the interview (e.g. comments about the weather, local news, politics) or for pre-existing clients asking questions about their family or interests etc. can make a client feel more at ease.
  • You may find an “Expectation Sheet” sent to the client in advance a useful tool. This sheet lists what will happen online; what they can expect (including the need for the practitioner to determine their capacity); and reinforces to the client that they can terminate the meeting at any time if they feel uncomfortable. 

Clients who lack digital literacy skills, or who are immobile may require a client-end support person. This might be a family member, friend, social worker or medical attendant to assist with technology, particularly if a hand-held device is all that is available.

Consider:

  • At the commencement of the video conference, check with the client who is in the room (or vicinity)? If someone is unexpectedly present, ask if the client would like to reschedule the appointment or politely suggest that it would be appropriate to have the person exit the room if they are not a client-end support person.
  • All persons who intend to be present during the conference should introduce and identify themselves to you on camera.
  • What steps will you take to ensure that a client-end support person, family member or medical attendant does not unduly influence the client with their answer(s)?
    • Consider sending an email in advance to the support person with information or some examples of undue influence and setting out some guidelines for their role in the interview. Some guidelines may include:
      • Not to prompt or suggest answers to questions.
      • For someone who may have difficulty hearing, repeat the question verbatim by the solicitor and not supplement their own words. 
      • Patience - give the client time to answer.
    • Alternatively, you may find a ‘Third Party Form’ a useful tool. You could have the client-end support person sign the document confirming:
      • Confidentiality
      • Their duty to act on good faith
      • Confirmation they have not exerted or will exert any undue influence (explaining undue influence) or have acted or will act unconscionably (explaining unconscionable conduct) in the matter involved.

Your prior relationship with the client will be useful to assessing capacity, particularly your knowledge of the client’s will making or power of attorney making history, family situation and assets as well as any conditions giving rise to concerns around capacity, including medications.

Subject to the portion of the client in the camera frame, video conferencing allows you to observe your client’s body language and responses. You may need to provide guidance to the client on the placement of their device or themselves in order for you to obtain a clear view of them so you can assess their body language. An image of just their headshot may not give enough cues to assist in assessing capacity. If the quality of the interaction is affected by technical issues, your ability to assess capacity may also be thwarted.

Be prepared to reschedule appointments due to technical problems, or schedule longer or additional appointments, if the interactions take longer than a typical in-person consultation might otherwise have. Increased costs, due to longer or additional appointments, should be communicated to the client.

Take detailed and thorough file notes. If possible, confirm in writing the instructions and answers to the client after the video conferencing both for your records and for the client.