On 1 August 2013, the Law Society of Scotland published new guidance on "Vulnerable Clients". This guide looks at situations where a solicitor's client may have impaired mental capacity or is vulnerable to being bullied into doing something. A second set of guidance covers the risks relating to granting a Power of Attorney.
New guidance was recommended by the Mental Welfare Commission for Scotland (MWC) in a report published in 2012. This followed an investigation into the case of Mr and Mrs D, a couple with learning disabilities. Mr and Mrs D were taken to their GP's surgery by Mr D's brother, Mr E, to sign power of attorney documents in favour of Mr E. The documents had been prepared by Mr E's solicitor at Mr E's request. Mr and Mrs D received no independent legal advice. Mr and Mrs D were asked to sign the documents despite the fact that Mr D could not read and Mrs D had limited reading abilities. Mr and Mrs D signed the documents. Thereafter Mr E, their attorney, abused them emotionally and financially for a period of six years. Another relative eventually helped Mr and Mrs D to cancel the powers of attorney.
The new guidance aims to reduce the risk of such cases happening in future. The risk can arise in any area of legal work. The guidance emphasises the duty of solicitors to support their clients as much as possible to enable them to make valid decisions which will not be challenged at a later date. However, the guidance also encourages a solicitor to think carefully before acting on behalf of a client. A solicitor should look out for warning signs which may indicate that a client may not have capacity or is being pressured into acting. The guidance gives examples of these warning signs and explains what a solicitor should do in each situation. Particular care may be needed where a solicitor is initially approached by someone other than the client.
Our firm is uniquely placed to advise fellow solicitors about the issues addressed in both sets of guidance, and to give training. For more information or advice please contact our team.
