Meeting the needs of vulnerable clients
It's aimed at solicitors, practice managers and legal support staff.
Introduction
Solicitors need to adapt their practices to identify and meet the needs of clients who may be vulnerable due to their personal circumstances and barriers put in place by society.
Living with a disability, illness or diagnosis does not in itself make someone vulnerable.
It is important to recognise that many such people might find being identified as ‘vulnerable’ to be offensive.
It always important to remember that it is not their condition, but rather their situation and barriers to accessing legal services, which may make them vulnerable.
Equally, a person may be vulnerable without any disability, illness or diagnosis: for example, if they are recently bereaved.
The Solicitors Regulation Authority’s (SRA) 2025 consumer vulnerability in the legal market report highlights that vulnerability should be seen as universal, potentially affecting all clients to some extent and/or at some time.
It recommends that solicitors design their services to be accessible and inclusive to everyone.
By understanding clients’ specific needs and circumstances, you will be better able to offer your services to empower clients to make decisions.
For ease of reference, this guide uses the term ‘vulnerable clients’ to refer to people who are vulnerable either by reference to their situation or because of particular risk factors.
It is important to recognise that disabled people may find this label unhelpful or offensive.
Solicitors should avoid using the term unnecessarily when referring to individuals, and instead focus on the person’s specific circumstances or access needs.
This guide covers the law in England and Wales only.
Types of vulnerability
The terms ‘vulnerable’ and ‘vulnerability’ cover a range of situations that could affect any client who is at a disadvantage because of factors that affect their access to, and use of, legal services.
This guide focuses on three broad categories of vulnerable clients:
- clients who have capacity to make decisions and give you instructions, but need extra support to do this because of mental and/or physical disabilities – see identifying vulnerable clients and enabling vulnerable clients to use your services
- clients who lack mental capacity to make decisions and provide you with instructions, for whom you must follow a range of statutory and other safeguards – see our guide to working with clients who may lack mental capacity
- clients who are vulnerable to undue influence, undue pressure or duress and who may or may not have mental capacity to make decisions and provide you with instructions – see influence and undue influence
This guidance does not provide specific advice about children or the needs of vulnerable defendants in criminal proceedings.
Regulatory and legislative obligations
The mandatory SRA Principles apply to all those whom the SRA regulates, and to all aspects of practice.
You should always bear the SRA Principles in mind, particularly the requirement to act in the best interests of each client, and use these as your starting point.
Failure to meet your professional duties under the SRA’s Standards and Regulations may result in SRA sanctions or a referral to the Solicitors Disciplinary Tribunal.
This guidance will help you to recognise and meet your duties under the Mental Capacity Act 2005 and the Equality Act 2010.
If you fail to meet the needs of a vulnerable client, you could be at risk of:
- 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 about the client’s capacity or document your assessment
- a complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation
- a complaint to the SRA about discrimination or failure to follow professional principles
- reputational risk – your practice's reputation depends on how you treat your clients, and also how you treat their liability to other parties (for breach of warrant of authority see Blankley v Central Manchester & Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18)
Paragraph 3.4 of the SRA Code of Conduct for Solicitors specifically requires solicitors to “take account of your client’s attributes, needs and circumstances”.
You must ensure you have the skills to be able to identify a situation where someone may have impaired mental capacity and robust processes to guide how you approach the situation.
In this context, you should make sure you have the skills and processes to be able to identify a situation where someone may have reduced mental capacity, and how you approach the situation.
You must also be mindful of the potential for instructions to be given under duress or undue influence to avoid a breach of paragraph 3.1 of the Code of Conduct for Solicitors.
A more inclusive practice will attract more clients and a more diverse workforce, bringing benefits to the business.
Identifying vulnerable clients
Vulnerability indicators
Many people are or might be vulnerable when accessing legal services.
Applying the principles of universal design to the processes that you have in place will enable the greatest numbers of people to access legal services in a positive and supportive way.
The Legal Services Board has published research on vulnerabilities consumers face when using legal services.
Risk factors include:
- advanced age
- young age
- physical disabilities
- ill-health
- cognitive impairment, such as dementia
- mental health problems
- learning disabilities
- sensory impairment
- acquired brain injury, caused (for example) by a stroke or head injury
- behavioural disorder, such as attention deficit hyperactivity disorder (ADHD)
- neurodiversity, such as autism spectrum disorder
- psychological or emotional factors, such as stress
- communication difficulties, including no or limited speech, English as a foreign language, limited ability to read or write, trouble with reading and writing accuracy and comprehension, and illiteracy
- experience of domestic violence or sexual abuse
- heavy reliance on others (family or friends) for care, support or accommodation
- long-term alcohol or drug abuse
- exposure to/experience of financial abuse and/or exploitation
- poor financial literacy
- lack of a social network
- living alone
- living in poverty
- adverse life events, such as bereavement
- dependence on a care provider
It does not follow that because a person has a risk factor, they are vulnerable, but you should be alert to the possibility.
Some people may be affected by more than one risk factor.
For example, a learning disabled person may also have hearing and/or visual problems that can affect their communication and understanding.
Risk factors may be temporary and can change over time.
One or more of these risk factors may mean your client is vulnerable and may:
- need your help to express their wishes, understand relevant advice and give you instructions, or
- lack capacity to make relevant decisions and to give you instructions
It is not always easy to identify vulnerability.
Some signs will be easier to spot than others.
You should not assume that your client will tell you about any difficulties.
Do not hold back from asking for more information for fear of being intrusive.
Many clients will be open about their difficulties if asked and happy to discuss any help they need.
For further guidance on identifying adults at risk of financial abuse, see our guide on financial abuse.
Identifying your client’s needs
Once you’re aware there are risk factors, you can help your client to:
- express their wishes and objectives
- overcome any difficulties to understand relevant advice
- give valid instructions
- carry through acts and transactions
This is important because the client should be supported to make decisions that they are legally capable of making.
There is a risk that the transaction will be set aside if a court finds the client to have lacked mental capacity to enter into a transaction, or the transaction was made through the undue influence of another.
You should try to find out whether your client:
- has any needs or preferences for communicating with you
- needs any help to access your services – for example, to overcome mobility problems or hearing or sight difficulties
- has any needs for how services are provided – such as documents written in clear and simple language or information given verbally
- understands and can act on the information and advice you provide, or whether they need support to do this – for example, from an advocacy service or interpreter
Carers or family members may also be able to provide helpful information and support to assist the client in terms of understanding information and/or communicating with you.
But you always need to be mindful to ensure any instructions given are those of the client themselves (see the role of carers).
In identifying and responding to your client’s needs, remember the risks that, if a court finds the client to have lacked mental capacity to enter into a transaction, or the transaction was made through the undue influence of another, the transaction will be set aside.
Enabling vulnerable clients to use your services
Areas to think about
Marketing
Think about how you promote your services and the ways in which you can help vulnerable clients and their families and carers.
Not everyone has access to the internet.
You may want to think about ways of providing information in ways which do not require such access, such as flyers in taxis.
Website accessibility
For many clients, your website will be an important source of information about your practice and your services.
If your website is not easy to read or navigate, or if its content is difficult to understand, you may put off potential clients.
Find out more about website accessibility.
Accessibility to and around your premises
Are your premises easy to find and to access?
Would clients with sensory and mobility difficulties be able to access your building?
Are the floors and corridors clear and easily navigable?
Are your rooms well lit? This is particularly important for clients who may be lip reading.
Do you have meeting rooms large enough to accommodate clients who may bring other family members, carers or advocates with them?
The Centre for Accessible Environments can provide you with information about registered access audits.
Legal obligations
Make sure you comply with your legal obligations to make reasonable adjustments and avoid disability discrimination in charging for reasonable adjustments.
The duties under the Equality Act 2010 are anticipatory.
You need to think in advance about how to make reasonable adjustments, rather than wait for a problem to arise.
The Equality and Human Rights Commission has published guidance for services, public functions and associations.
Staff training
Provide training for staff who may have contact with clients on:
- accessibility
- disability and deaf awareness
- visual impairment
- reasonable adjustments
- mental capacity
- recognising vulnerability
- conflicts between clients and carers
- safeguarding
- financial abuse
- dementia awareness (such as the Dementia Friend scheme)
Appointments
Offer flexibility around appointment times, how long they last and where you meet clients.
Visiting clients at home may put them at ease and help with communication, for example, if your client has dementia or mental health problems.
It may help you comply with your obligations under section 3(2) of the Mental Capacity Act 2005, and associated guidance, to try to support and enable a person’s understanding of a particular question.
Where you need to see a client at home, consider when the contract has been entered into, as the Consumer Contracts Regulations 2013 may apply, and appropriate notices must be provided.
See our practice note on the Consumer Contracts Regulations 2013.
When undertaking home visits, consider:
- carrying out a risk assessment of clients who have a history of aggression or difficult behaviour
- whether for safety reasons, it is appropriate for two people to attend
- writing to the client in advance, setting out who will attend, the date and time
- if you're not known to the client, providing a brief description or a picture
- showing the client identification before entering their home
- calling the office when you have arrived and when you leave
- considering a ‘check-in’ call from the office after a specific length of time
Lone working tools are available from the Suzy Lamplugh Trust.
Written communications
Make sure that your written communications, such as client care letters, letters of advice and costs information, are written clearly, with headings, in clear fonts and free from legal jargon.
Clients with learning disabilities and other cognitive impairments may require information in Easy Read formats.
Easy Read is a specialist information style that combines simplified text with descriptive images that aid in understanding.
Find out more about creating easy-read legal information and access free templates.
Hearings
Plan for accessibility issues that may come up at tribunal, hospital or court hearings.
Specialist support
You can use support professionals or independent advocates who can help clients, such as those who have a learning disability or mental health problems.
They can support your client throughout the legal process, including at the initial advice stage.
Use appropriate safeguards when using semi-automated systems, such as e-conveyancing services, to make sure the client has capacity and is giving instructions freely.
Feedback
Ask your clients for feedback on how to improve your services.
Tailored and appropriate communication
Under the Equality Act 2010, you must anticipate the needs of people with particular types of disability, as well as making tailored reasonable adjustments for such people.
This means you need to be prepared. You should know, for example, how to find and engage a sign language interpreter.
Adjustments that could help you communicate with your clients include:
- allowing extra time for meetings with clients who may need longer to understand what you are explaining, have a speech impairment or are communicating through a third party
- visiting them in a place that they feel most comfortable
- breaking an interview into many parts to allow them to rest
- arranging a meeting for a time of day where the client feels most alert and aware
- explaining issues without using legal jargon
- getting the help of an independent third party
- providing information in large print, Braille, audio, video, infographics, simple drawings by hand, or easy-read format
- providing written text on a coloured rather than a white background (this can be helpful for dyslexic clients or those with a visual impairment and they can tell you which colours to use)
- facilitating a sign language interpreter, lipspeaker or deaf-blind communicator
- facilitating a reader for clients with visual impairments
- installing an induction loop or having a portable one available
- conducting conversations using the text relay system
- ensuring they have access to translation services if they do not speak English (or using an electronic translation tool, being mindful of the potential for such tools to be misleading)
- recording the meeting
- providing a written note of the points raised and advice given in the meeting in a format that works best for the client
- not requiring the client to make complaints or requests in writing
Assisting vulnerable clients during court proceedings
Criminal cases
Special considerations apply to vulnerable defendants and witnesses in criminal and family cases.
These are especially relevant if you are doing any advocacy on behalf of a vulnerable client or instructing counsel to do so.
The Advocacy Training Council has developed toolkits under the Advocates Gateway programme.
These provide valuable advice on supporting vulnerable clients throughout the trial or hearing process.
A range of ‘special measures’ apply to vulnerable and intimidated witnesses (but not defendants) in criminal cases under sections 16 to 33 of the Youth Justice and Criminal Evidence Act 1999. These include:
- screens to shield the witness from the defendant
- use of a live link
- excluding the public from the courtroom
- removal of wigs and gowns in the Crown Court
The court may appoint an intermediary to help a vulnerable witness to give their evidence at court and help with communication.
The intermediary may explain questions or answers if this is necessary for the witness or the questioner to understand, without changing the substance of the evidence.
The Coroners and Justice Act 2009 extended intermediaries to the evidence of defendants, but this provision is not yet in force.
However, the courts have a common law duty to appoint an intermediary to make sure that a vulnerable child defendant can have a fair trial. See:
- R(C) v Sevenoaks Youth Court [2009] EWHC 465 (Admin)
- R (OP) v SS Justice, Cheltenham MC, and CPS (Just for Kids Law intervening) [2014] EWHC 1944 (Admin)
- paragraphs 6.2.4 to 6.2.6 of the Criminal Practice Directions 2023
Read the SRA’s resources on youth court advocacy.
Family cases
Intermediaries have also been used in civil cases, in particular in the Family Court, for both children and vulnerable adults.
See also the Family Procedure Rules Practice Direction 3AA on vulnerable persons: participation in proceedings and giving evidence.
Court of Protection cases
The Court of Protection is a specialist court for making decisions about the personal welfare and/or property and financial affairs of people who lack mental capacity to make their own decisions.
It was established under the Mental Capacity Act 2005 (see clients who may lack mental capacity).
Guidance on facilitating participation of ‘P’ and vulnerable persons in Court of Protection proceedings, published in 2016, suggests how practitioners can help vulnerable people to take part in court proceedings.
An independent mental capacity advocate must be appointed if there is no one appropriate to consult about the person’s best interests and the decision to be made is about:
- a long-term move into a care home or hospital
- serious medical treatment
- a deprivation of the person’s liberty
The advocate will support and represent the person who is considered to lack capacity. The role is separate from legal representation.
Mental health cases
An independent mental health advocate (IMHA) is an independent and specially trained advocate who provides support to people who:
- have been detained under the Mental Health Act 1983 (as amended), and
- are receiving inpatient care and treatment or treatment under a community treatment order
They may help a person to understand the issues and questions raised at a hearing in the:
- First-tier Tribunal (Mental Health) in England
- Mental Health Review Tribunal in Wales
The role is separate from legal representation.
Clients who may lack mental capacity
Under paragraph 3.4 of the SRA’s Code of Conduct for Solicitors, you must consider and take account of your client's attributes, needs and circumstances.
You must satisfy yourself about their capacity if you have any doubts about whether your client has the capacity to give instructions.
This is important, as it can enable the client to make decisions (or protect them from making a decision when they lack capacity) and reduces the risk of any subsequent complaint or challenge.
It is important to understand the context in which you are being instructed.
If you have acted for the client or their family over many years, you or another colleague may have useful background information.
It will be very different if this is a new client.
Be mindful if you are acting for a client on a pro bono basis that the same duties of care arise.
For more information on when, how and by whom a capacity assessment should be undertaken, read our guide to working with clients who may lack mental capacity.
The role of carers
Carers of vulnerable people
Carers can play a valuable role in supporting vulnerable people to access legal services and to make relevant decisions for themselves.
Carers may also be able to help with communication and help you to identify what reasonable adjustments could be made to assist the client.
In practice, the definition of a carer is wide. It includes:
- informal, unpaid carers – such as relatives or friends providing personal care or supervision, either full-time or on a casual basis
- professional, paid carers – such as care workers, social workers and community nurses
Carers or family members may also be able to provide helpful information and provide support to assist the client in terms of understanding information and/or communicating with you.
But you always need to be mindful to ensure that any instructions given are those of the client themselves.
You should always seek to discuss confidential information with the client alone, keeping in mind the principle of client confidentiality and the need for consent if confidentiality is waived.
Taking instructions: the involvement of carers
It’s important to be clear about who your client is, whenever relatives or other carers seek to give instructions on their behalf.
As a general rule, you can act only on a client’s instructions.
No one, whether a family member or a professional, has the right to give instructions or make decisions about another person's property, financial or legal affairs unless they have been given formal authority to do.
This authority must be given either by
- the client, or
- a court, for example:
- an attorney acting under a registered enduring power of attorney (EPA) or lasting power of attorney (LPA)
- a litigation friend or deputy
For further information, see our practice note on lasting powers of attorney.
The role of agents, advocates and appropriate adults
Taking instructions from an agent
In some cases where the client lacks capacity to give instructions, you may be taking instructions from an agent such as an attorney or a deputy, if it’s within the scope of their authority.
The person for whom the attorney or deputy is acting (the principal) is still your client and you must act in the client’s best interests.
If you are concerned that the instructions the agent gives you are not in your client’s best interests or that there is a conflict of interest, you should tell the agent about your concerns.
If necessary, you should decline to act on the agent’s instructions if you still believe that these are not in the client’s best interests.
You will have to decide whether you can continue to act for the client, or alternatively for the agent if another independent solicitor is appointed to represent the principal.
In certain limited situations, you will be deemed to be acting for the agent rather than the principal. These include:
- where an attorney has instructed you to apply to the Office of the Public Guardian for registration of the EPA or LPA
- where a prospective deputy instructs you to apply to the Court of Protection for the appointment of a deputy
- where you represent the deputy, attorney or other party to Court of Protection proceedings when there is a conflict of interest, or potential breach of the agent’s fiduciary duty not to benefit from their position. In this situation, you may act for the party to the proceedings and the Court of Protection may, if no other party is available and in the last resort, appoint the Official Solicitor or another independent person to act as litigation friend to represent the interests of the principal
- where you believe there is a conflict of interest and that you must act for the agent rather than the principal (who should then be separately represented)
Attorneys
While they still have capacity to do so, adults aged 18 and over may make an LPA appointing their chosen attorney(s) to make specific decisions on their behalf.
The LPA must be registered with the Office of the Public Guardian before any power contained within it can be used.
The attorney’s role and powers will depend on the type of power of attorney and whether the donor has specified any restrictions in the attorney’s authority to act.
A property and affairs LPA may give authority to the attorney(s) to act (with the donor’s consent) whilst the donor has capacity to make the relevant decisions.
It may also be granted solely on the basis that it gives authority where the donor lacks capacity.
In the latter case, the attorney(s) must always consider whether the donor can make the decision themselves before moving to act in the donor’s best interests.
In the case of a health and welfare LPA, attorneys must always consider whether the donor can make the decision themselves and should only act in their best interests if the donor is unable to.
Attorneys are not entitled as of right to act as litigation friends and must be appointed in the normal way. See litigation friends below.
For further information on the various forms of LPA and their effect, see our practice note on lasting powers of attorney.
Deputies
Where there is an ongoing need for decisions to be made on behalf of a person lacking capacity, and the person has not previously made an LPA or EPA appointing an attorney to make the relevant decisions, the Court of Protection may appoint a deputy with authority to make those decisions.
Court-appointed deputies can be given wide powers, including the power to conduct legal proceedings on behalf of a person lacking capacity if authorised by the court to do so.
The scope of the deputy’s authority will be specified in their order of appointment.
Deputies can be appointed to make decisions on property and financial affairs or health and welfare, or occasionally both.
However, the court is required under the MCA 2005 wherever possible to make a single order instead of appointing a deputy who will act on an ongoing basis.
Most care and treatment decisions can be made without an order from the court.
This is because those who provide or decide on care or treatment on behalf of people who lack capacity to consent are legally protected against liability, provided the decision maker, applying the test in section 4 of the Mental Capacity Act 2005, believes their decision is the person’s best interests (section 5 MCA 2005).
In Re Lawson, Mottram and Hopton (appointment of personal welfare deputies) [2019] EWCOP 22, the Court of Protection has held that the decision whether to appoint a deputy is always to be taken by reference to whether an appointment is in the best interests of the person.
The person’s wishes and feelings will form an aspect of that decision (for instance if it is clear that the person would wish a family member to be appointed to be their personal welfare deputy).
The court has also held that proper operation of section 4 and section 5 means that, in practice, personal welfare deputies will not often be appointed, in particular because the appointment of a deputy should not be seen, in and of itself, as less restrictive of the person’s rights and freedoms.
Deputies must always act in the best interests of the person lacking capacity and in accordance with the MCA 2005 principles (see above).
They must have regard to the guidance in the MCA Code of Practice, in particular Chapter 8.
Litigation friends
People who lack capacity to conduct proceedings may become parties to proceedings in the High Court, the county courts and the Family Court, as well as in the Court of Protection.
Litigation friends are appointed to give instructions and otherwise conduct the proceedings on their behalf.
A litigation friend can be a family member or a professional, but will not (except in exceptional circumstances) be the solicitor themselves.
There is guidance in Part 21 of the Civil Procedure Rules for how a litigation friend can be appointed.
The court can appoint a litigation friend without an application, but a prospective litigation friend will need to complete a ‘certificate of suitability’ form which varies depending on which court the case is being made in.
An accredited legal representative (ALR) may be appointed directly to represent the person who is subject to proceedings before the Court of Protection instead of appointing a litigation friend.
We have established a panel of ALRs, and the Court of Protection can appoint representatives from the panel.
Find out more about accreditation and the panel
The Official Solicitor is the litigation friend of last resort, although the Official Solicitor will not act in any proceedings unless she has security for her costs.
Find out more about litigation friends.
Advocates
A range of independent advocates appointed under the following acts may be involved with vulnerable clients:
- the Mental Capacity Act 2005 (independent mental capacity advocates)
- the Mental Health Act 1983 (independent mental health advocates)
- the Care Act 2014 in England
- Part 10 of the Code of Practice (Advocacy) under the Social Services and Well-being (Wales) Act 2014
Aside from statutory advocates, many advocates are also appointed from the voluntary sector on a privately paid basis and often from personal care budgets.
You should always check the basis upon which the advocate has been commissioned to provide services to your client, because each will be providing a different function.
Advocates will often play a vital role in supporting vulnerable clients and may be important in helping the client to communicate with you to provide instructions.
However, an advocate will never, by virtue of their role alone, be in a position to provide you with those instructions.
The appointment of an advocate to support the client provides an additional layer of independent support to the client.
When acting as a professional attorney or deputy, you should consider whether appointing an advocate would be helpful.
Appropriate adults in criminal matters
Under the Police and Criminal Evidence Act 1984 (PACE) Codes of Practice, police custody sergeants must secure an appropriate adult (AA) to safeguard the rights and welfare of vulnerable people who are detained and questioned by the police.
Vulnerable people are classed as children aged 10 to 17 and mentally vulnerable adults.
The role of an AA includes:
- supporting, advising and assisting the detained person, particularly while they are being questioned
- observing whether the police are acting properly, fairly and with respect for the rights of the detained person – and telling them if they are not
- assisting with communication between the detained person and the police
- ensuring that the detained person understands their rights and that the AA has a role in protecting those rights
An AA should be someone who is completely independent of the police.
Where possible, they should also be independent of the vulnerable person, although parents often do act as AA for a child or young person.
Ideally, they should have a sound understanding of, and experience or training in, dealing with the needs of juveniles, vulnerable adults or mentally disordered people.
An AA cannot, merely because of their position, give instructions to a solicitor on behalf of the individuals they assist.
Find out more about appropriate adults.
Influence and undue influence
Some people are unable to make a material decision not because of an impairment or disturbance in their mind or brain but because of the influence of others, such as family members.
The law treats such people differently from those lacking capacity for the purposes of the Mental Capacity Act 2005.
Because the person has capacity to make their own decision, no other person may take the decision on their behalf.
Assistance from the High Court
The High Court can use its inherent jurisdiction in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either:
- under constraint
- subject to coercion or undue influence
- for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent
See:
- Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam)
- A Local Authority v DL & Ors [2011] EWHC 1022 (Fam)
- Re L (vulnerable Adults with Capacity: Court's Jurisdiction) [2012] EWC CIV 253
Such cases are usually brought by a public body, such as the local authority undertaking safeguarding functions.
The High Court has the power to grant injunctive or other relief with the aim of putting in place a framework to enable the individual to make their own decisions.
The precise scope and extent of the High Court’s powers is subject to rapidly evolving case law and practitioners should make sure they keep up to date with developments.
Assessing whether there is undue influence
In many situations, a client may come accompanied by a family member or carer, or information may be provided to you by such a person or a concerned neighbour.
In most cases, the intermediary will be well intentioned and communicating on the client’s behalf with their consent.
However, you should be aware of the possibility of conflicts of interest or undue influence.
Your overriding duty is to your client and you must ensure that your instructions are from your client, free of undue influence of others.
If your client has capacity to do so, you should confirm your instructions directly with the client by seeing them on their own, especially if detailed information has been provided by someone else.
Make sure you have thought about how any information you are giving to the client about the matter is provided in an accessible way as part of ensuring the instructions they give really are their wishes.
Clients may seek legal advice (for example, to make a will, an LPA or a significant gift) because they have been influenced or told by someone, such as a family member, that they ought to do so.
This ‘influence’ may be well-intentioned and sensible.
However, if you suspect that a client's instructions are the result of coercion or pressure (‘undue influence’),you need to exercise your professional judgment as to whether you can proceed or continue to act on the client’s behalf.
Assessing whether undue pressure is being used to make an LPA
It is a legal requirement that an independent person, who may be a solicitor, must form an opinion that at the time when the donor signs the LPA:
- they understand its purpose and the scope of the conferred authority
- no fraud or undue pressure is being used to induce the donor to create the LPA
- there is nothing else which would prevent the LPA from being created (Schedule 1, paragraph 2(1)(e) Mental Capacity Act 2005)
Undue pressure is not identical to undue influence, although there is an overlap.
Undue pressure is not defined and there is no direct case law, although Cretney & Lush on Lasting Powers and Enduring Powers of Attorney, para 17.88 (8th Edition) (Lexis Nexis) provides it will be established if:
- the donor was induced to make the power
- pressure was used to induce the donor to grant the power
- the pressure was undue
To exercise undue pressure is to behave in a manner that is excessive or creates greater hardship than the circumstances warrant.
Presumed undue influence
Gifts
Undue influence may be a factor even when there is no evidence of any coercion or pressure.
If an individual is thinking about making a significant lifetime gift, undue influence is presumed where:
- there is a relationship of trust and confidence between the client and the recipient of the gift – for example, care giver and care receiver, patient and doctor, solicitor and client, and
- the proposed gift needs an explanation – for example, it is an absurdly generous gift, or a gift of their main asset, such as their home, perhaps to just one of their children
Once undue influence is presumed, it’s not enough for the recipient to demonstrate that the individual had capacity to make the gift, and that there was no actual coercion or influence.
It is important that the individual has their own independent legal advice, considering all the relevant information and risks, before making a free and fully informed decision to go ahead with the gift.
See our practice note on making gifts of assets.
Testamentary dispositions
This ‘presumption’ of undue influence does not arise for testamentary dispositions (gifts left in a will).
Persuading an individual to include someone as a beneficiary in their will would not necessarily amount to undue influence.
Coercive behaviour is usually required.
However, if the client is particularly elderly or frail, then less obviously aggressive methods might amount to undue influence.
If you have no evidence of undue influence but concerns remain
Where there is no evidence of undue influence or pressure, but the client appears to want to continue with a transaction you consider to be against their best interests, you should see the client alone, or with a neutral third party if they want or need help with communication.
You should explain the consequences of the client’s instructions and get confirmation (preferably in writing) that they want to proceed.
Remember that a core principle of the Mental Capacity Act 2005 (and the common law) is that a decision you consider unwise may still be a decision that the client can make with capacity.
It’s therefore important that you probe carefully to find out the driver for the decision and keep a detailed note of your discussion.
It may be better to use an independent advocate or interpreter, or another independent helper, rather than relying on a family member or carer to communicate the client’s wishes.
Means assessment for civil legal aid
While the Legal Aid Agency (LAA) expects a means assessment to be completed fully for all cases, it recognises it may be difficult to provide the full means information needed for particularly vulnerable clients (for example, some homeless and community care clients).
To avoid the means application being rejected on multiple occasions, the LAA has agreed to arrange for its senior means assessors to take a view based on the circumstances of the case.
Email contactcivil@legalaid.gsi.gov.uk with the subject line ‘vulnerable client means assessment’.
Find out how the legal aid means test is changing.
Resources
The Law Society
Practice Advice Service
We provide support for solicitors on a wide range of areas of practice. Contact the Practice Advice Service from 9am to 5pm on weekdays.
Call: 020 7320 5675
Email: practiceadvice@lawsociety.org.uk
Practice notes and guidance
Access and disclosure of an incapacitated person’s will
Working with clients who may lack mental capacity
Working with vulnerable clients case studies
Law Society publications
Assessment of Mental Capacity: a Practical Guide for Doctors and Lawyers (5th edition)
Solicitors Regulation Authority
The SRA has published advocacy guides on:
- meeting the needs of vulnerable people
- good practice for police station representatives, including awareness of clients' needs
- good practice for youth court solicitors
Professional ethics helpline
The SRA's professional ethics helpline for solicitors offers advice on the SRA Standards and Regulations to solicitors, trainees and solicitor apprentices. You can choose to remain anonymous.
Call 0370 6062577 from 10am to 1pm and 2pm to 4pm, Monday to Friday.
Chat with the team online between 9am and 10am, 1pm and 2pm, and 4pm and 5pm, Monday to Friday (closed on Wednesday).
Reporting another professional
Read the SRA guidance on reporting misconduct and confidentiality of client information.
Other resources
Enabling access to your services for vulnerable clients
Charities and other organisations provide online guidance for professionals on helping particular groups of clients.
General Medical Council – learning disability resources
Headway – the brain injury association
Royal National Institute for Deaf People (RNID)
Mental Capacity Act practice and procedure
Mental Capacity Act 2005 Code of Practice
Social Care Institute for Excellence Mental Capacity Act Directory
Court of Protection Handbook guidance
British Medical Association Mental Capacity Act toolkit
We thank Jo Honigmann (Just Equality), Penny Letts and our Mental Health and Disability and Wills and Equity committee in developing this guidance.
We would also like thank Nadine Tilbury and Beth Tarleton at the Norah Fry Research Centre (Bristol University) for their assistance in providing a case study about clients with learning disability.