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Meeting the needs of vulnerable clients

2 July 2015

What is the issue?

  • Some clients have difficulty accessing and using legal services. Research has concluded that solicitors need to adapt their practices to identify and meet the needs of vulnerable clients.

Legal status

This practice note is the Law Society's view of good practice in this area. It is not legal advice.

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so should make it easier to account to oversight bodies such as the Solicitors Regulation Authority (SRA) for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note, please contact the Law Society's Practice Advice Service.

Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should - Outside of a regulatory context, good practice for most situations in the Law Society's view. In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA - Solicitors Regulation Authority

SRA Code - SRA Code of Conduct 2011

2007 Code - Solicitors' Code of Conduct 2007

OFR - Outcomes-focused regulation

IB - Indicative behaviour

AA - Appropriate adult

EPA - Enduring power of attorney

LPA- Lasting power of attorney

MCA 2005 - Mental Capacity Act 2005

OS - Official Solicitor

The Law Society also provides a full glossary of other terms used throughout this practice note

Contents

  1. Introduction
    1. Who should read this practice note?
    2. What is the issue?
    3. Who are vulnerable clients?
    4. Compliance with regulatory and legislative obligations
     
  2. Identifying the vulnerable client
    1. Vulnerability indicators
    2. Signs of vulnerability: what to look out for
    3. Identifying the needs of your client
     
  3. Enabling vulnerable clients to access your services
    1. Areas to think about
    2. Tailored and appropriate communication
    3. Assisting vulnerable clients in the course of court proceedings
      1. Criminal cases
      2. Family cases
       
     
  4. Clients who may lack mental capacity
    1. What is capacity?
    2. Mental Capacity Act 2005 - the statutory principles
    3. Mental Capacity Act - the legal test for capacity to make decisions
    4. Capacity to instruct a solicitor to carry out specific instructions
    5. Other legal tests of capacity
      1. Capacity to make a will
      2. Capacity to make a lifetime gift
      3. Capacity to conduct proceedings
       
    6. Assessing capacity
      1. Techniques for assessing capacity
      2. Obtaining a medical or other expert opinion
       
    7. What happens when a client lacks capacity to give you instructions?
      1. Taking instructions on behalf of a client who lacks capacity
       
     
  5. The role of carers and other third parties
    1. Carers of vulnerable people
    2. Taking instructions: the involvement of carers
    3. Taking instructions from an agent
      1. Attorneys
      2. Deputies
      3. Litigation friends
       
    4. Advocates
    5. Appropriate Adults in criminal matters
     
  6. Influence and undue influence
    1. Presumption of undue influence
      1. Gifts
      2. Testamentary dispositions
       
    2. No actual evidence of undue influence but concerns remain
     
  7. Case studies for practitioners
    1. Working with disabled clients
    2. Working with clients who may lack capacity
    3. Working with clients who may be vulnerable to undue influence
    4. Working with clients with learning disability
     
  8. Further Information
    1. Law Society
      1. The Practice Advice Service for solicitors
      2. Other Law Society practice notes
      3. Law Society publications
       
     
  9. SRA
    1. Professional Ethics helpline
    2. Reporting another professional
     
  10. Other resources
    1. Enabling access to your services for vulnerable clients
    2. Mental Capacity Act practice and procedure
     
  11. General
  12. Acknowledgments
  13. Footnotes

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