It is important to make sure that a client has legal capacity when making a will. The reason for this is twofold:
1. Legal Practitioners are required to act in the best interest of their client as per rule 4.1.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.
2. If the client is later found to not have capacity, their actions will be susceptible to challenges by other interested parties. It is therefore important to make sure that client has capacity to prevent future disputes.
What is Legal Capacity?
A person has 3 types of capacities:
1. Legal capacity;
2. Mental capacity; and
3. Physical capacity
In common law, there is a presumption of capacity. When a solicitor sees a client, in the absence of any clear evidence to the contrary, the solicitor is required to presume the client’s legal capacity.
The legal profession in both Australia and the United States have found it difficult to formulate a uniformed approach towards legal capacity. This is because capacity is fluid and decision-specific. Thus, a practitioner is encouraged to consider the issue of capacity by in the context of an ongoing relationship with the client rather than a one-off meeting.
This also means that if a client has capacity to make a will, it does not automatically qualify them to make a power of attorney or swear an affidavit.
The Guideline set by the LIV is that the legal practitioner ought to consider the following, whether the client can:
1. Understand the decision and its implications;
2. Retain the information pertaining to the decision;
3. Use or weigh the information in making the decision; and
4. Communicate the information and decision.
If in doubt about a client’s capacity when making a will, but the client is able to give coherent instructions, the practitioner is advised by the LIV to proceed with signing the will, but obtain a medical assessment of capacity as soon as possible ex post facto.
Obtaining Medical Assessment
If the practitioner is unsure about the legal capacity of a client; with the client’s consent, the practitioner may request medical capacity assessment be conducted by a competent medical practitioner.
Often the first port of call for medical capacity assessment would be the client’s GP. The client’s GP can then refer them to a specialist if needed.
Practitioners will need to obtain consent from the client before requesting for such information. If client refuses to give such information, the firm may refuse to act for them.
The LIV Elder Law Committee has guideline on matters to consider when requesting a medical assessment:
· appointment arrangements
· relevant background on the client, including personal, medical and financial information
· details of the legal transaction/proceeding and why the assessment is sought
· clarity on the scope of the request, i.e.:
the type of assessment
the legal test(s) to be applied, or
any guidelines about how the assessment is to be conducted
· administrative matters, including details of the expert’s qualifications and expertise and any relevant court or tribunal Practice Direction on expert evidence
· confidentially and access to the report.
Medical assessment is only one of the sources of evidence regarding capacity, it is important to note that clinical opinion is different from legal capacity. The implications of this would mean that the legal practitioner is the ultimate judge of legal capacity. Whilst this may seem to be the approach endorsed by the LIV, the practitioner must ensure that in the face of contrary medical evidence they have sufficient evidence and notes of their own to substantiate their finding that the client has legal capacity.
If in doubt, contact the LIV Ethics Advice Line on 03 9607 9336.
Substitute Decision Maker
As last resort, practitioners may make an application to have a substituted decision maker appointed for their client.
 When a Client’s Mental Capacity is In Doubt: A Practical Guide for Solicitors, The Law Society of New South Wales, page 4. Ibid.  LIV Capacity Guidelines and Toolkit: Taking Instructions When a Client’s Capacity is in Doubt, Law Institute of Victoria, October 2016, page 2. Ibid. Ibid, page 4. Ethics Committee Ruling R4568. Above n 1; Assessment for Older Adults with Diminished Capacity: A Handbook for lawyers, The American Bar Association Commission on Law and Aging and the American Psychological Association, 2005.