What should I do if my client loses capacity?

I’m acting in a civil litigation matter and have concerns about my client’s capacity. What should I do?

It’s for you to decide whether a client has capacity to instruct you and whether you can accept and act on the client’s instructions.

Although the Mental Capacity Act 2005 guiding principle is the presumption of capacity, the Solicitors Regulation Authority’s (SRA) Principle 7 requires that you act in your client’s best interests.

Under paragraph 3.4 of the SRA Code of Conduct for Solicitors, RELs and RFLs, you must consider and take account of your client’s attributes, needs and circumstances.

As such, you must satisfy yourself about their capacity if you have any doubts.

You must apply the relevant legal test for each transaction at the time the client needs to make the decision.

Your responsibility is to:

• identify what the client needs to understand
• support the client in the decision-making process
• record in writing how this was achieved, including the client’s verbatim answers to questions raised

Further guidance on techniques for assessing capacity is set out in our guide on working with clients who may lack mental capacity.

If you're not able to form a view about the client’s capacity or an assessment is required for court purposes, such as an application to the Court of Protection, you should seek the opinion of an appropriately skilled and qualified professional.

A client might object to you getting a report. If this happens and you still have serious concerns that the client lacks capacity to provide you with instructions, you should take all reasonable steps to encourage your client to get a report.

If they still refuse, you must explain to your client in writing that you are unable to act for them, or to continue to act without a report.

You must also explain the potential legal consequences, such as a subsequent challenge and the transaction being set aside by a court.

If proceedings are being contemplated, or if you are concerned your client has lost capacity during proceedings, you can apply to the court for a determination of whether the client lacks capacity to conduct the proceedings.

The court may then order an assessment.

However, if the client refuses to undergo medical assessment then there is no power to order them to comply with an assessment of capacity.

Ultimately, it’s a court that decides whether the client has or does not have capacity, taking into account the evidence and various opinions (Masterman-Lister v Brutton & Co (Nos. 1 and 2) [2002] EWCA Civ 1889).

Where an existing client loses capacity to instruct you, you should as far as practicable take action to protect your client’s interests.

You may be able to act, or continue to act, on behalf of a client lacking capacity to instruct you by getting your instructions from a litigation friend, attorney or court appointed deputy.

You should also consider the requirement in part 21 of the Civil Procedure Rules that a protected party must have a litigation friend to conduct proceedings on her behalf.

For further information, see our guides to working with clients who may lack mental capacity and meeting the needs of vulnerable clients.