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 2023 (Qld) ('ASCR') states that you must follow a client’s lawful, proper and competent instructions.
The general rule is that a person is presumed to have capacity. The Queensland Handbook for Practitioners on Legal Capacity (which is being updated) provides practitioners with a sound conceptual framework for assessing whether a client has capacity to give legal instructions. Both the Handbook and Capacity Assessment Guidelines 2020 outline some of the considerations that can assist practitioners in assessing, supporting and maximising their client’s capacity. It must be remembered that capacity can be decision-specific, time-specific, fluctuate and can change with support. If you decide that obtaining a medical assessment may be necessary, 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.