Comparative Law: Practice Guide for Representing Vulnerable Clients in England & Wales

The Law Society of England and Wales recently issued a “Practice Note” for lawyers (or rather, “solicitors”) on representing vulnerable clients, including but not limited to clients with dementia.  The guideline reflects research that demonstrated “solicitors need to adapt their practices to identify and meet the needs of vulnerable clients.” The guide recognizes that “vulnerable” clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.

The guide warns that failure to “meet the needs of a vulnerable client” may trigger:

• A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
• A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client’s capacity to instruct you or failing to document your assessment of the client’s capacity, leaving the validity of the transaction open to challenge.
• A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
• Reputational risk – your practice’s reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.

The guide has a detailed discussion of mental capacity issues, including the attorney’s need to consider the following four factors:

• Does the person understand the information relevant to the decision?
• Can the person retain the information?
• Can the person use or weigh up the information as part of the process of making the decision?
• Can the person communicate their decision (whether by talking, sign language, or any other means)?

The guide identifies a potential conflict between English common law, statutory law (Mental Capacity Act of 2005, also cited as MCA 2005) and Code of Practice guidelines for attorneys when evaluating a client’s capacity for execution of wills and other important documents.  For example, the guide notes:

The High Court in Walker v Badmin [2014] All ER (D) 258 reviewed various conflicting decisions on whether the correct test of capacity is the MCA 2005 test or that established in the case of Banks v Goodfellow QBD 1870. It was concluded that the Banks v Goodfellow test is the correct test, although it is possible that an appellate court might reach a different conclusion.

The Law Society’s Practice Note, issued 2 July 2015 strikes me as rich opportunity for comparative legal analysis in the U.S., especially in its discussion of options for third-party assistance in decision-making for clients with limited or impaired mental capacity.  See, for example, the discussion of “enduring power of attorney” or EPA versus “lasting power of attorney” or LPA,  “litigation friends” appointed for pending court proceedings, and “independent advocates.” 

Thank you to Professor Laurel Terry at Dickinson Law whose area of specialization is international regulation of attorneys, and thus is often a good resource for comparative systems.