Solicitor’s rules and ethical responsibilities when dealing with older clients

The legal profession has a critical role in safeguarding the rights and interests of vulnerable individuals, particularly older clients. Solicitors must navigate several ethical and professional obligations when working with older clients, including those related to competency, best interests, receiving gifts and confidentiality. In New South Wales, specific solicitor’s rules apply when engaging with older clients, given the potential risks of diminished capacity, undue influence and elder abuse. This article explores the relevant solicitor’s rules applicable in such cases, discusses the requisite standard of competence for legal practitioners, considers Ford’s case and provides an overview of useful tools for detecting elder abuse.

Applicable solicitor’s rules when dealing with older clients

In NSW, solicitors must adhere to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (the ‘Conduct Rules’). These rules provide a framework for how solicitors should act generally but are especially relevant when dealing with older clients, ensuring they do so competently, ethically and with sensitivity to the vulnerabilities that often come with advanced age.

Competent instructions and client capacity

One of the most critical aspects of a solicitor’s role when representing older clients is determining whether the client has the mental capacity to provide competent instructions. Under rule 7 of the Conduct Rules, solicitors are required to ensure their clients can understand the nature of the advice given and can provide instructions accordingly.

When an older client presents with diminished mental capacity, a solicitor must assess their ability to give informed instructions, which may require consulting with medical professionals, family members or caregivers. Solicitors should always be alert to signs of diminished capacity, especially in the context of dementia, Alzheimer’s disease or other cognitive impairments.

Best interests and fiduciary duty

Rule 4 of the Conduct Rules requires solicitors to act in the best interests of their clients. When dealing with older clients, this means a solicitor must take extra care to protect the client from potential harm, including financial exploitation or undue influence from others, such as family members or carers.

For older clients with diminished capacity, the solicitor’s role becomes even more critical in protecting their interests. Solicitors are required to act as fiduciaries, ensuring any instructions provided by the client are truly in their best interests and are not the result of coercion or undue influence.

Receiving gifts

Under rule 12, solicitors are prohibited from receiving gifts or benefits from clients unless it can be demonstrated that the gift is reasonable and not influenced by any undue pressure. This rule is particularly important when dealing with older clients, as they may be vulnerable to undue influence or manipulation by individuals seeking financial gain from them.

Solicitors must carefully assess the context of any gifts given by older clients and ensure these gifts are freely given and in line with the client’s true wishes. In situations where a solicitor receives a substantial gift from an older client, they must document the circumstances surrounding the gift and ensure it is not part of a pattern of exploitation.

Confidentiality and privacy

Solicitors owe their clients a duty of confidentiality under rule 9. This duty remains applicable after the client’s death and applies to all information related to the representation of the client. When dealing with older clients, particularly those who may be suffering from conditions like dementia, it is essential that solicitors take special care to ensure confidential information is handled appropriately. This includes ensuring the client understands the limits of confidentiality and any disclosures that may be required.

Ethical responsibilities in dealing with older clients

In addition to the specific rules set out in the Conduct Rules, solicitors have broader ethical responsibilities when representing older clients. These responsibilities involve ongoing assessments of capacity, careful note-taking and the exercise of good judgment.

In respect of ethical professional duties, solicitors should also be aware and mindful of the decision of Legal Services Commissioner v Ford [2008] QLPT 12 (‘Ford’). It is a timely reminder of the correct process for obtaining instructions from an older client, especially where there may be questions of lack of capacity.

Ongoing assessment of capacity

It is not sufficient for solicitors to merely assess the capacity of older clients at the beginning of the representation: an ongoing assessment is required. An older client’s capacity may fluctuate over time, particularly in cases involving conditions such as dementia or cognitive decline. Solicitors should be mindful of changes in their client’s condition and be proactive in reevaluating their client’s capacity throughout the course of the legal matter. To assess a client’s understanding, a legal practitioner should ask open questions. Open questions will often start with the words like why, what, who, when and how.

Detailed record-keeping

It is essential that solicitors keep detailed and accurate records of all communications with their older clients as well as general observations. These records serve as documentation of the client’s instructions, as well as the solicitor’s assessments of the client’s capacity. Detailed notes also protect the solicitor in case of future disputes about the client’s capacity or the actions taken by the solicitor. Care should be taken to ensure handwritten notes are legible.

Awareness of relevant case law and guidelines

Solicitors must be familiar with the relevant case law and recommended guidelines governing the capacity of older clients. Notable cases, such as Banks v Goodfellow (1870) LR 5 QB 549 (‘Banks v Goodfellow’), and the Law Society of NSW’s capacity guidelines provide important guidance on how to determine whether an individual is competent to make decisions, including the execution of a will.

Banks v Goodfellow remains the authority for the test of capacity in the context of making a will: specifically, a testator must understand the nature of the act of making a will, understand the extent of their estate, and be free from any delusions or undue influence that could affect their decisions. Solicitors must assess their older clients’ capacity in light of this case, ensuring the client fully comprehends the legal transaction in question and the impact of their decisions.

What is the requisite standard required of a competent lawyer?

The standard required of a competent lawyer when dealing with older clients is not only technical legal expertise but also sensitivity to the client’s vulnerabilities and the ability to assess their capacity to make informed decisions. Ford establishes that a reasonably competent lawyer is one who is alert to triggers of possible incapacity and who acts appropriately where such triggers arise by appropriate questioning, maintaining notes, and/or seeking the advice of the client’s GP or specialist in certain cases. By conducting themself in this way, a solicitor will generally have no reason for concern with respect to breach of professional duty. Where the correct process is followed, there can be no grounds for disciplinary action or civil liability.

Knowledge of elder law and capacity issues

A competent lawyer must possess a sound understanding of elder law, including issues related to capacity, undue influence and elder abuse. This requires knowledge of the various cognitive conditions that may affect older clients, as well as the legal principles governing their decision-making ability. A lawyer should be well-versed in the Banks v Goodfellow test and understand when to seek expert medical opinions about a client’s mental state.

Ability to identify and address elder abuse

As stated in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, ‘[a] solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases’ (at [107]). A competent lawyer must be able to identify potential signs of elder abuse, including financial exploitation, physical abuse, emotional abuse and neglect. The Law Council of Australia, in its Best Practice Guide for Practitioners in Relation to Elder Financial Abuse, suggests questions such as ‘why are you doing this?’ can be a useful initial enquiry because it allows the client to state their reasons for seeing the legal practitioner. It affords the legal practitioner an opportunity to develop rapport quickly, and to assess mental capacity and the possibility of undue influence. Solicitors must be attuned to subtle signs of abuse and must take action when they suspect their client is at risk. This could involve reporting concerns to relevant authorities or advocating for the client’s protection in court.

Maintaining professionalism and empathy

Finally, a competent lawyer must approach older clients with empathy, respect and professionalism. Older clients may feel vulnerable, so it is important for the lawyer to foster a relationship of trust and confidence. This means listening carefully to the client’s concerns, explaining legal concepts in simple terms and ensuring the client’s wishes are respected, even if the lawyer disagrees with them.

Educating legal practitioners on identifying elder abuse

Elder abuse can take many forms and solicitors are often in a unique position to detect it. To assist legal practitioners in identifying elder abuse, several published screening tools have been developed. These tools can help solicitors recognise signs of abuse and take appropriate action.

Elder Abuse Suspicion Index

The Elder Abuse Suspicion Index (‘EASI’) is a widely-used screening tool that consists of a series of questions designed to help legal practitioners identify potential signs of elder abuse. The EASI helps solicitors assess whether a client may be experiencing physical, emotional or financial abuse.

Hwalek-Sengstock Elder Abuse Screening Test

The Hwalek-Sengstock Elder Abuse Screening Test (‘H-S/EAST’) is another tool designed to help legal professionals detect signs of elder abuse. This screening test includes a combination of questions regarding the client’s physical well-being, living conditions, and relationships with family members and caregivers.

Older Adult Financial Exploitation Measure

The Older Adult Financial Exploitation Measure (‘OAFEM’) is specifically focused on identifying financial exploitation. This tool can be used by solicitors to assess whether an older client is being financially exploited, either by family members, caregivers or others in their life.

Conclusion

Dealing with older clients requires solicitors to be aware of the unique challenges that arise in representing this vulnerable demographic. From assessing capacity and protecting best interests to identifying and preventing elder abuse, legal practitioners must adhere to the highest ethical and professional standards. Tools like the EASI, H-S/EAST, and OAFEM provide valuable resources for detecting elder abuse, ensuring that solicitors can act quickly to protect their clients. By adhering to the relevant Conduct Rules, being aware of relevant guidelines, and maintaining a high standard of competence and empathy, solicitors can ensure they fulfill their important role in safeguarding the rights and well-being of older clients in NSW.

MaryAnn de Mestre is the principal at M de Mestre Lawyers and a lecturer of succession law at Macquarie University.