Lawyers take it as a professional obligation to make sure their clients have the capacity to give instructions in a legal matter. It is an obligation that sits alongside our other professional obligations, such as maintaining confidentiality and acting in the best interests of the client.
Legal capacity is the ability to enter into legal relations, and to make decisions that have legal consequences. However, it can be a tricky issue and can cause difficulties for solicitors, clients and family alike.
There is a presumption that all adults have legal capacity, yet someone’s capacity can be affected by various factors, including mental illness, ongoing medical conditions, stress and age.
Solicitors will be on the lookout for warning signs from clients. Disorientation, forgetfulness, confusion and lack of mental flexibility can all be indicative of an impaired capacity.
However, solicitors are careful not to make assumptions simply based on appearance or age, and are aware also that communication difficulties can stem from cultural differences, or hearing or vision impairments, rather than incapacity.
Capacity can be a complex area of law. Considerations often involve the interaction between a client’s right to self-determination and the danger of a client making important decisions when lacking the necessary capacity to understand the ramifications.