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Meeting the needs of vulnerable clients

2 July 2015

Note that the SRA Handbook (version 21) was replaced by the SRA Standards and Regulations on, and with effect from, 25 November 2019.

This practice note will shortly be updated to reflect the introduction of the SRA Standards and Regulations. Until then, you are advised to check any references in the practice note to the current Handbook against the new Standards and Regulations to ensure that you are aware of the up-to-date position on all issues to which the practice note refers.

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.


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


  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

1. Introduction

1.1 Who should read this practice note?

This practice note is essential reading for all solicitors, practice managers and legal support staff, particularly if you do not act for vulnerable clients on a regular basis.

1.2 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.

1.3 Who are vulnerable clients?

The terms vulnerable and vulnerability are used here as a shorthand to address a range of situations which could affect any client who is at a disadvantage because of factors that affect their access to, and use of, legal services.

Please note that this practice note does not provide specific advice in relation to children or the needs of vulnerable defendants in criminal proceedings.

The possibility of vulnerability should be considered whenever you are consulted or instructed by a client in any matter.

This practice note focuses on three broad categories of vulnerable clients.

They are:

  • clients who have capacity to make decisions and provide you with instructions, but by reason of a range of mental and/or physical disabilities require enhanced support to engage your services and give you instructions - sections 2 and 3
  • clients who lack mental capacity to make decisions and provide you with instructions, for whom a range of statutory and other safeguards must be followed - section 4
  • clients who are vulnerable to undue influence or duress and who may or may not have mental capacity to make decisions and provide you with instructions - section 6

1.4 Compliance with regulatory and legislative obligations

Section 5 of this note discusses independent third party support for vulnerable clients which can often be crucial in assisting you in obtaining the best possible legal outcome for them.

1.4.1 There are ten mandatory principles which apply to all those the Solicitors Regulation Authority (SRA) regulates and to all aspects of practice. The principles can be found in the SRA Handbook. You should always bear these principles in mind and use them as your starting point. Failure to meet your professional duties within the SRA Handbook may result in SRA sanctions or a referral to the Solicitors' Disciplinary Tribunal.

1.4.2 In addition, 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 as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
  • A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
  • Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.
  • Liability to other parties for breach of warrant of authority.1

1.4.3 This practice note will help you to recognise and meet your duties under the Mental Capacity Act 2005 and the Equality Act 2010.

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2. Identifying the vulnerable client

2.1 Vulnerability indicators

Risk factors may be short or long-term, and can fluctuate over time depending on the circumstances. The following are offered as examples of risk factors and are not an exhaustive list:

  • advanced age, children and young people
  • physical disabilities or ill-health
  • cognitive impairment
  • loss of mental capacity to make relevant decisions
  • mental health problems
  • learning disabilities
  • sensory impairment
  • dementia
  • acquired brain injury caused for example by a stroke or head injury
  • severe facial or other disfigurement
  • difficulty in accessing and/or understanding complex information, for example, because of psychological or emotional factors such as stress or bereavement
  • communication difficulties, including no or limited speech, English as a foreign language, limited ability to read or write and illiteracy
  • experience of domestic violence or sexual abuse
  • heavy reliance on others (family or friends) for necessary care, support or accommodation
  • long-term alcohol or drug abuse
  • exposure to financial abuse

Some people may be affected by more than one risk factor - for example, many people with a learning disability have hearing and/or visual problems that can affect their communication and understanding.

Any one or more of these risk factors may mean that your client is vulnerable and may require your assistance to express their wishes, understand relevant advice and provide you with instructions, or that they may lack capacity to make relevant decisions and to give your instructions.

2.2 Signs of vulnerability: what to look out for

It may not always be easy to identify vulnerability. Some signs may be obvious while others are only just perceptible or hidden. You should not assume that your client will tell you of any difficulties. Simple observation will identify many mobility problems, physical or sensory disabilities or more severe impairment of mental capacity. It is important not to feel inhibited about asking for more information for fear of being intrusive - many clients will be open about any disability they have or specific assistance they require, or will be if asked, and will be glad to discuss how you can best meet their needs.

The Law Society practice note on financial abuse provides further guidance on the identification of adults at risk of financial abuse.

2. 3 Identifying the needs of your client

Once you are aware that there are risk factors present, you can help your client to access your services and overcome any disadvantage caused by these risk factors. You should tactfully try to identify the needs of your client to find out whether they:

  • have any requirements or preferences for communicating with you
  • have any requirements to access your services, for example, to overcome mobility problems or hearing or sight difficulties
  • have any requirements in terms of how services are provided, such as documents written in clear and simple language or information given orally
  • understand and can act on the information and advice provided, or whether they may 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 but in the first instance you should always seek to discuss these matters with the client alone, unless the client lacks capacity give you instructions (see Section 5).

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3. Enabling vulnerable clients to access your services

3.1 Areas to think about

Ensuring that your practice provides an accessible service to vulnerable clients will mean considering many different aspects of your practice including:

  • Marketing/making use of local links: advertising the services that you offer and the ways in which you can assist vulnerable clients and their families and carers. Many vulnerable potential clients will not have access to the internet.
  • Website accessibility: conversely, for many clients, your website will be an important source of information about your practice and the services that it offers. If your website is not easy to read or navigate or if its content is difficult to understand, you may put off potential clients2.
  • Accessibility to and around your premises: are your premises easy to find and to access? Would older clients and clients with sensory and mobility difficulties be able to access your building? Are the floors and corridors clear? 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.
  • Ensuring compliance with your statutory obligations to make reasonable adjustments and avoidance of disability discrimination in charging for reasonable adjustments.
  • Training for staff who may have contact with clients on accessibility, disability and deaf awareness, reasonable adjustments, mental capacity, recognising vulnerability, conflicts between clients and carers, safeguarding and financial abuse.
  • Flexibility around appointment times, duration and location.
  • Willingness to visit clients at home may put them at ease and aid communication, for example, where your clients have dementia or mental health problems.
  • Accessibility of written communications, for example, client care letters, letters of advice, costs information, written clearly and free from 'legal jargon'.
  • Anticipating accessibility issues that may arise at tribunal, hospital or court hearings.
  • The use of support professionals or independent advocates who can assist, for example, clients with a learning disability, throughout the legal process, including at the initial advice stage.
  • Appropriate safeguards when using semi-automated systems.
  • Obtaining feedback from clients on how to improve the service you offer.

3.2 Tailored and appropriate communication

'He more or less explained a lot of it to me without some of the jargon that you would get with most. Some solicitors they go through all this jargon and you think 'what are they on about', you know, and he did explain a lot of it to me as well'.3  

The 'reasonable adjustments' duty under the Equality Act 2010 is anticipatory: you must anticipate the needs of people with particular types of disability as well as making tailored reasonable adjustments for individuals. This means you need to be prepared: you should know, for example, how to find and engage a sign language interpreter.4

Types of adjustments that could aid communication with your clients include:

  • allowing extra time for meetings with clients who may need longer to understand what you are explaining, or who have a speech impairment, or who are communicating through a third party
  • explaining issues without using legal jargon
  • enlisting the help of an appropriate third party
  • providing information in large print, Braille, audio, DVD or easy-read format
  • providing written text on a coloured rather than a white background; this can be particularly helpful for dyslexic clients or those with a visual impairment and they can advise you as to which colours to use
  • providing a sign language interpreter, lip-speaker or deaf-blind communicator
  • providing a reader for clients with visual impairments
  • installing an induction loop or having a portable one available
  • conducting conversations with clients using the text relay system
  • providing a digital recorder, dictaphone or electronic notetaker, or
  • not requiring the client to make complaints or other requests in writing.

3.3 Assisting vulnerable clients in the course of court proceedings

3.3.1 Criminal cases

Special considerations and measures apply to vulnerable defendants and witnesses in criminal and family cases. These are especially relevant if you are carrying out any advocacy on behalf of a vulnerable client or instructing counsel to do so. The Advocacy Training Council has developed specialist toolkits under the Advocates Gateway programme which provide valuable advice on supporting vulnerable clients throughout the trial or hearing process. The toolkits can be accessed here.

A range of 'special measures' apply to vulnerable and intimidated witnesses (but not defendants) in criminal cases pursuant to sections 16 to 33 of the Youth Justice and Criminal Evidence Act 1999, including screens to shield the witness from the defendant, use of a live link, exclusion of the public from the courtroom, and the removal of wigs and gowns in the Crown Court. The court may appoint an intermediary to assist a vulnerable witness to give their evidence at court and facilitate communication; the intermediary may explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner, 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 ensure that a vulnerable child defendant can have a fair trial (see R(C) v Sevenoaks Youth Court[2009] EWHC 465 (Admin); and R (OP) v SS Justice, Cheltenham MC, and CPS (Just for Kids Law intervening) [2014] EWHC 1944 (Admin)).

3.3.2 Family cases

Intermediaries have also been used in civil cases, in particular in the Family Court, for both children and vulnerable adults.

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4. Clients who may lack mental capacity

4.1 What is capacity?

Mental capacity is the ability to make a decision - both day-to-day decisions and more significant decisions that may have legal consequences, such as buying property, entering into a contract, making a will, bringing or defending legal proceedings or seeking a divorce. Capacity is decision-specific, so a client may have capacity to make a simple decision but does not have capacity to make a complex decision or a decision that has significant consequences or carries significant risk.

If you reasonably entertain a doubt about your client's capacity to give proper instructions, it is your professional duty to satisfy yourself that the client either has or does not have the capacity to give instructions.5 The statutory test of capacity to make a decision is contained in section 2(1) MCA 2005 which is set out at paragraph 4.3 below. There continues to be judicial debate as to the relationship between the statutory capacity test and common law tests of capacity although the High Court has clarified the position on the test for capacity to make a will and to make a lifetime gift (both of which are addressed at paragraphs 4.5.1 and 4.5.2 respectively).

The test of capacity to conduct proceedings is set out in paragraph 4.5.3 below.

4.2 Mental Capacity Act 2005 - the statutory principles

Section 1 MCA 2005 contains the first three principles that are the starting point for assessing capacity:

1. A person must be assumed to have capacity unless it is established that he lacks capacity.

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

The starting point is the presumption that an adult client has full legal capacity to make their own decisions. Where there is doubt as to a person's capacity, the burden of proof is on the person seeking to establish a lack of capacity, on the balance of probabilities.

A person must be given all appropriate help and support to enable them to make their own decisions or, in the event that they are assessed as lacking capacity to make the decision in question, to maximise their participation in any decision making process. An unwise decision should not, by itself be sufficient to indicate lack of capacity. However, doubt may be raised as to the person's capacity if, for example, their decision is out of character.

4.3 Mental Capacity Act - the legal test for capacity to make decisions

You should be aware that a lack of capacity cannot be established merely because of a person's age or appearance or their condition or an aspect of their behaviour. Section 2(1) of the MCA 2005 states that:

'... a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.'6

Capacity is therefore both decision specific and time specific and the inability to make the decision in question must be because of 'an impairment of, or a disturbance in the functioning of the mind or brain'.

Although there is one test of capacity, the statutory Code of Practice which supports the MCA 2005 identifies two elements: the 'diagnostic' and the 'functional' elements.

  • Does the person have an impairment or disturbance that affects the way their mind or brain works?
  • Does the impairment or disturbance mean that they are unable to make a specific decision at the time it needs to be made for one or more of the reasons set out in section 3 MCA 2005?

It is important to understand that a person is only considered to lack capacity for the purposes of the MCA 2005 if their inability to make a decision is because of an impairment or a disturbance in, the functioning of, the mind or brain.

Section 3 MCA 2005 defines what it means to be unable to make a decision.

In deciding whether the person is unable to make a decision the following four factors must be considered:

  • Does the person understand the information relevant to the decision?
  • Can the person retain the information?
  • Can the person use or weigh up the information as part of the process of making the decision?
  • Can the person communicate their decision (whether by talking, sign language, or any other means)?

Information relevant to a decision will include the particular nature of the decision in question, the purpose for which it is needed, the effect(s) of the decision and the likely consequences of deciding one way or another or of making no decision at all (MCA 2005 s.3(4)). You must provide an explanation of the relevant information in ways that are appropriate to the person's circumstances, using the most appropriate form of communication to help the person understand.

Retaining information for even a short time may be sufficient in the context of some decisions. It depends on what is necessary for the decision in question.

You can find further guidance about the MCA 2005 test of capacity in chapter 4 of the MCA 2005 Code of Practice.

Section 6 of this practice note addresses the position where a client has capacity to make the material decisions but is vulnerable to the influence of those around them.

4.4 Capacity to instruct a solicitor to carry out specific instructions

You must be satisfied that your client has capacity to give you instructions on the matter in question. If you have any doubt as to whether a client has capacity to provide an instruction or instructions, you must undertake a capacity assessment before any instructions are acted upon. To do otherwise may place you at risk of the sanctions set out at paragraph 1.4.2 above.

Different levels of capacity are required for different transactions. For example, different considerations apply to making a gift than in conducting litigation. You must assess the client’'s understanding in the context of the transaction upon which you are instructed, applying the relevant legal test of capacity (see paragraph 4.5 below) and then consider whether the client is able to provide you with instructions on what they wish to do.

Even if you are satisfied that your client has the necessary mental capacity to make a specific decision, you may still need to be alert to the possibility of the client being subject to undue influence (see section 6).

If your client lacks capacity instruct you your role, your obligations and responsibilities are different from when you are acting for a client with capacity (see paragraph 4.7 below).

4.5 Other legal tests of capacity

4.5.1 Capacity to make a will

The High Court in Walker v Badmin [2014] All ER (D) 258 reviewed various conflicting decisions on whether the correct test of capacity is the MCA 2005 test or that established in the case of Banks v Goodfellow QBD 1870. It was concluded that the Banks v Goodfellow test is the correct test, although it is possible that an appellate court might reach a different conclusion. This test is set out below:

The testator must:

a. understand the nature of his act (of making a will) and its effects;

b. understand the extent of the property in his estate. be able to comprehend and appreciate the claims to which he ought to give effect; and

c. that no disorder of his mind 'shall poison his affections, perverse his sense of right, or his will in disposing of his property'.

4.5.2 Capacity to make a lifetime gift

As in the case of wills there has been uncertainty as to whether the common law test has been superseded by the MCA 2005 test. The High Court in Kicks v Leigh[2014] EWHC 3926 (Ch) reviewed the conflicting case law and concluded that the common law test is the correct test. Again, it is possible that an appellate court might reach a different conclusion.

The common law test is set out in Re Beaney [1978] 2 All ER 595 which says that the degree of understanding required for the making of a valid lifetime gift is relative to the transaction which is to be carried out. If the subject matter and value of the gift is trivial in relation to the donor's other assets a low degree of understanding is sufficient. However, if the effect of the gift is to dispose of the donor's only asset of value and so pre-empt the devolution of his estate under his will or on his intestacy, the degree of understanding required is as high as that required for a will and the donor has to understand the claims of all potential donees and the extent of the property to be disposed of.

4.5.3 Capacity to conduct proceedings

(NB this section does not cover criminal proceedings)

Formally, the test of capacity to conduct proceedings will vary according to the type of court. However, as the Supreme Court has made clear in Dunhill v Burgin[2014] UKSC 18, there is unlikely to be any real difference whether the test is the statutory test applied under the MCA 2005 (as is applied in civil proceedings) or the common law.

The key question therefore remains as set out in the judgment of Chadwick LJ in Masterman-Lister v Brutton & Co [2003] All ER 162, namely whether:

'a party to legal proceedings is capable of understanding, with the assistance of such proper explanation (in broad terms and simple language) from legal advisers and other experts as the case may require, the matters on which their consent or decision was likely to be necessary in the course of those proceedings.'

This test applies to the proceedings as a whole and not at each step in the conduct of the proceedings.7

The test of lack of capacity to conduct proceedings is the statutory test under the MCA 2005. However, the principles that evolved under the common law continue to be of assistance in applying the statutory test.

Capacity depends on time and context and should not be determined in the abstract. The question is always whether the litigant has capacity to conduct proceedings in relation to the particular proceedings in which he is involved and not other proceedings or their ability to make decisions in general.8

The following are some of the factors that may be relevant, for example, in assessing a client's capacity to conduct civil proceedings:

  • The client would need to understand how the proceedings were to be funded.
  • The party would need to know about the chances of not succeeding and the risk of an adverse order as to costs.
  • The client would need to have capacity to make the sort of decisions that arise in litigation.
  • The client would need to have the capacity to give proper instructions for, and to approve the particulars of claim, and to approve a compromise.
  • For a client to have capacity to approve a compromise, they would need insight into the compromise, an ability to instruct solicitors to advise them on it, and an understanding of the solicitor's advice and an ability to weigh that advice before making a decision.

The Supreme Court also made clear in Dunhill v Burgin that the test must be applied to the claim that the party in fact has, not to the claim as formulated by their lawyers.

If your client is a party to but lacks capacity to conduct proceedings in the County Court, High Court, Family Court or Court of Protection a litigation friend must be appointed to give instructions and otherwise conduct the proceedings on their behalf.9 The rules that govern the procedures vary according to the court or tribunal that the party is before.

4.6 Assessing capacity

It is 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 MCA 2005 guiding principle is the presumption of capacity you would not be acting in your client's best interests when you knew or should have known that there were grounds to doubt their capacity without first satisfying yourself that the client does indeed have the requisite capacity - see paragraph 1.4.2 above.

You must apply the relevant legal test in respect of each particular transaction at the time the decision needs to be made.

The assessment should be conducted whenever possible with the client alone. You should not assume that anyone accompanying the client (including a family member) has their genuine interests at heart.

It may be useful if you also observe how any relative or friend who has accompanied the client behaves towards the client and vice versa as that may identify whether there is the risk of undue influence or pressure.

If you are concerned about a client's capacity, especially in relation to a decision with serious consequences either for them or other people, it is advisable to seek the opinion of an appropriately qualified professional. Where possible, you should choose a professional who knows your client and has expertise relevant to your client's condition. You should explain to the professional the legal test of capacity and ask for an opinion as to how the client's medical condition may affect their ability to make the decision in question.

Testamentary capacity

Where a will is prepared for an elderly or seriously ill client, the courts have developed the 'golden rule', which should be considered as guidance only. This provides that the will should be approved or witnessed by a medical practitioner, regardless of how tactless or difficult it may be to explain this precautionary measure to your client.10 The aim of the rule is to minimise or avoid post-death disputes about the capacity of the testator.

Read more detailed discussion of the golden rule

Ultimately, you must satisfy yourself that your client has the requisite testamentary capacity. You should therefore make and retain detailed and contemporaneous attendance notes, which confirm the steps you have taken to explore their capacity, the evidence you have collated, the circumstances and the rationale for your decision.

If there is a doubt about whether a client has capacity to make a particular decision, it is advisable to see the client personally in order to satisfy yourself that your client has capacity to make the decision you are concerned with.

4.6.1 Techniques for assessing capacity

How and when you see the client may be important, for example, choosing the time of day when the client is most alert and seeing them in the place where they feel most comfortable. There may be times or intervals in the day when your client may be more lucid than others; it is important to recognise that capacity can fluctuate significantly during the course of one day.

To put your client at ease, you might first chat about matters other than the business that you intend to carry out. It is helpful to know from other sources (such as family or carers) something of the client's family background and career so that you can verify the client's recollection. You should also ask a few questions about current affairs and past events. You should prepare and retain detailed and contemporaneous notes of any attendances. It is also helpful to record the questions you ask the client and the client's response, using the client's own words if possible.

At any subsequent interview you should seek to discuss some of the same matters and see if there is consistency in what the client says. You should also seek detailed instructions again - if they are materially different there is a good chance that the client may lack capacity in respect of that particular transaction.

Remember that you are testing the client's understanding of the decision to be made at the time it is made, not whether you agree with the client.

See also the guidance on assessing capacity in the Law Society practice note, Financial abuse.

4.6.2 Obtaining a medical or other expert opinion

You should inform your client of any concerns that you have about their capacity, the purpose of any capacity assessment, and the implications if they are found to lack such capacity.

If your client is a party to proceedings you may require the permission of the court to obtain an expert opinion.

When obtaining a medical or other expert opinion you must provide the client's written consent or confirm that the client has agreed to be assessed: You will also need to:

  • explain clearly the purpose of the assessment and appropriate test of capacity
  • with the consent of the client, supply sufficient background information to enable the expert to make an informed assessment - the information the expert receives may well affect their opinion, which places the onus on you to provide the right information
  • set out any concerns about the client, especially about the appropriateness of the proposed decision and whether the expert is in fact being asked to confirm your opinion
  • ask the expert to set out how the client's condition may affect their ability to make the decision in question, giving reasons for their conclusions
  • provide a timescale for any response, especially if the matter is urgent
  • actively chase the expert for the report, if there is any delay, and
  • let the expert know if and how they are to be paid for the opinion.

In some circumstances, it may be more relevant to obtain an opinion from a professional other than a medical practitioner, such as a social worker, clinical psychologist or speech and language therapist, depending on the client's particular condition and the decision in question. However, the same considerations apply in relation to all appropriately qualified professionals.

There may be occasions when the client objects to you obtaining a report. If you still have serious concerns that the client lacks capacity to provide you with instructions and you have taken all reasonable steps to encourage your client to obtain a report, you must explain to your client in writing that you are unable to act for him, or to continue to act for him without a report being obtained and explain the legal consequences.

If proceedings are being contemplated, or if you are concerned your client has lost capacity during the course of proceedings, an application can be made 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 an individual to comply with an assessment of capacity. In some cases the judge will have to form a view as to capacity without the benefit of any external expertise, although the courts have emphasised that judges should be slow to do so because of the seriousness of the consequences for the person.11

The Official Solicitor has a standard form of report (Certificate of Capacity to Conduct the Proceedings) for recording the assessment of the mental capacity of an adult to conduct their own proceedings where that adult is a party or intended party to proceedings in the Family Court, the High Court, a county court or the Court of Appeal. The certificate has guidance notes for the assessor and can be sent with the letter of instruction.

4.7 What happens when a client lacks capacity to give you instructions?

If you consider that a potential client lacks capacity to give you instructions, you may be entitled to decline to act on their behalf. If you do wish to act on their behalf, you must first make sure that you are able to identify a person who has the requisite authority to give you instructions (see paragraph 4.7.1 below).

If you consider that an existing client has lost the capacity to continue to give you instructions, then the following considerations apply:

  • generally a retainer terminates by operation of law when a client loses the capacity to give or confirm instructions
  • however, there may be exceptions to this rule (in particular where the retainer has provided for the potential loss of such capacity).12

Where an existing client loses capacity to instruct you, you should as far as practicable take action to protect your client's interests. As set out below, if you are to continue to act, you need to make sure that you have identified a person who is able to give you instructions.

If you remain doubtful as to the correct course of action you should contact the SRA Ethics Helpline.

4.7.1 Taking instructions on behalf of a client who lacks capacity

Depending on the circumstances of the case, you may be able to act, or continue to act on behalf of a client lacking capacity to instruct you by obtaining your instructions from a litigation friend, attorney or court appointed deputy. For example:

  • You may act under the instructions of an attorney (such as a family member) appointed under a registered enduring power of attorney (EPA) or lasting power of attorney (LPA), provided the decision in question is within the scope of their authority. You may act under the instructions of a court appointed deputy (depending upon the scope of the deputy's authority)
  • You may continue to conduct legal proceedings on the client's behalf acting on the instructions of a litigation friend appointed by the court.
  • Where there are no current proceedings, but where proceedings are contemplated, you may be able to identify a third party who can give instructions on the client's behalf, as a proposed litigation friend. The proposed litigation friend is able to sign an application for legal aid on behalf of the client: see Regulation 22 of the Civil Legal Aid (Procedure) Regulations 2012 and paragraph 3.12 of the Standard Civil Contract 2014.

You should also be aware that the new Rule 3A within the Court of Protection Rules allows the Court of Protection in some cases to appoint an accredited legal representative to act for a client without a litigation friend (assuming that a panel of representatives will have been created).

See paragraph 5.3 below for more detail about taking instructions from an agent.

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5. The role of carers and other third parties

5.1 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 assist with communication and help you to identify what reasonable adjustments could be made to assist the client. In practice, the definition of a carer has a wide meaning and includes informal carers such as relatives or friends providing personal care or supervision either full time or merely on a casual basis, as well as professional carers such as care workers, social workers and community nurses.

In the first instance, you should seek to obtain information and discuss matters with the client alone, being especially mindful of the principle of client confidentiality and the need for consent if confidentiality is to be waived.

5.2 Taking instructions: the involvement of carers

It is 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 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 so either by the client or by a court (for example an attorney acting under and EPA or LPA, a litigation friend or deputy).

For further information please see the Law Society practice note, lasting powers of attorney.

5.3 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 (if it is within the scope of their authority) or a deputy (if it is 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 you are given by the agent are not in your client's best interests or that there is a conflict of interest, you should inform the agent of your concerns. If necessary, you should decline to act on the instructions of the agent if you continue to 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 on the basis that another independent solicitor will be appointed to represent the principal.

In certain situations, you will be deemed to be acting for the agent rather than the principal. These include:

  • where you have been instructed by an attorney 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 - in such a 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).

5.3.1 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 attorney's role and powers will depend on the type of power of attorney made and whether the donor has specified any restrictions in the attorney's authority to act. In the case of a health and welfare LPA attorneys must always consider whether the donor can in fact make the decision themselves and should only act in their best interests if the donor is unable to. It is also important to note that attorneys are not entitled as of right to act as litigation friends and must be appointed in the normal way (see para 5.4.3 below).

Further information on the various forms of LPA and their effect please see the Law Society practice note on lasting powers of attorney.

5.3.2 Deputies

Where there is an ongoing need for decisions to be made on behalf of a person lacking capacity to make such decisions, 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 either in respect of property and financial affairs or in respect of the health and welfare of the patient, or occasionally both. However, the court is required under the MCA wherever possible to make a single decision in preference to the appointment of a deputy, so the appointment of health and welfare deputies is rare.

Deputies must always act in the best interests of the person lacking capacity and in accordance with the MCA 2005 principles (see above) and must have regard to the guidance given in the MCA Code of Practice, in particular Chapter 8.

5.3.3 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. They will stand in the shoes of the individual lacking capacity and give instructions on their behalf. A litigation friend can be a family member or professional, but will not (save in exceptional circumstances) be the solicitor themselves.13 The Official Solicitor is the litigation friend of last resort, and more detail about his role is available here. Guidance about the role of litigation friends in the Court of Protection is available here.

5.4 Advocates

There are a range of independent advocates appointed under the MCA 2005, the Mental Health Act 1983 and also the Care Act 2014 who may be involved with vulnerable clients. Aside from statutory advocates many advocates are also appointed from the voluntary sector on a privately paid basis and often from personal care budgets. It is always important to check the basis upon which the advocate has been commissioned to provide the services to your client, because each will be providing a somewhat different function.

Advocates will often play a vital role in supporting vulnerable clients, and may well play a particularly important role in assisting the client to communicate with you for purposes of providing instructions. However, an advocate will never, by virtue of their role alone, be in a position to provide you with those instructions.

5.5 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 (children aged 10-17 and mentally vulnerable adults) who are detained and questioned by the police. The role includes:

  • to support, advise and assist the detained person, particularly while they are being questioned
  • to observe whether the police are acting properly, fairly and with respect for the rights of the detained person - and to tell them if they are not
  • to assist with communication between the detained person and the police
  • to ensure 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 and, where possible the vulnerable person (although parents often do act as AA for a child or young person). It is desirable that 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 are to assist.

Read further information on Appropriate Adults

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6. Influence and undue influence

There are a significant class of people who are unable to take their own decisions but whose inability to do so stems from the influence exercised over them by others (for example family members), rather than from an impairment of, or disturbance in, their mind or brain.

The law treats such vulnerable individuals differently to those lacking capacity for the purposes of the MCA 2005: because the person has capacity to make their own decision, no other person may take decisions on their behalf.

In these circumstances it is possible for any person or body concerned as to whether the individual is under duress to seek the assistance of the High Court to provide its protection under its inherent jurisdiction.14 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.

In your first meeting with a vulnerable client, information may come from an intermediary, such as a family member, carer or concerned neighbour. In the majority of cases their assistance is well intentioned and they will be communicating on behalf of, and with the consent of, the client.

However, you should be aware of the possibility of conflicts of interest or, in some cases, 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. So, 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.

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. Such '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.

Your duties in relation to assessing the possibility of undue influence bearing upon your client are underpinned by the indicative behaviours in chapter 1 of the SRA Code. In particular IB 1.6 and IB 1.28 directly address the issue of undue influence:

  • IB (1.6) 'in taking instructions and during the course of the retainer, [have] proper regard to your client's mental capacity or other vulnerability, such as incapacity or duress.'
  • IB (1.28) ''acting for a client when there are reasonable grounds for believing that the instructions are affected by duress or undue influence without satisfying yourself that they represent the client's wishes'.... would demonstrate that you have failed to comply with the Code.'

6.1 Presumption of undue influence

6.1.1 Gifts

Undue influence may be a factor even when there is no evidence of any coercion or pressure. If an individual is contemplating 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 requires 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 the presumption of undue influence has arisen, it is not sufficient 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.

6.1.2 Testamentary dispositions

This 'presumption' of undue influence does not arise for testamentary dispositions. Persuading an individual to include a specific individual 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.

6.2 No actual evidence of undue influence but concerns remain

Where there is no evidence of undue influence or pressure15 but the client appears to want to continue with a transaction that you consider to be against their best interests, you should see the client alone (or with a neutral third party if the client wishes someone else to be present to support them or assist communication). In doing so you should explain the consequences of the instructions the client has given and get confirmation (preferably in writing) that the client wishes to proceed.

You should be mindful in circumstances such as these that a core principle of the MCA 2005 (and the common law) is that a decision you may consider to be unwise may nonetheless be a capacitous decision. It is therefore important that you probe carefully as to the driver for the decision where your suspicions are raised and keep a detailed note of your discussion.

It may be preferable to use an independent advocate or interpreter or other assistance from an independent source, rather than relying on a family member or carer to communicate the client's wishes.

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7. Case studies for practitioners

A. Working with disabled clients

Mrs Jones' marriage has broken down after forty years and she decides to seek legal advice about a divorce. She has a severe visual impairment but does not want anyone to know that she is thinking about a divorce, so she wants to meet with a solicitor on her own. She telephones a local solicitor's firm to book an appointment and is put through to the team secretary of the firm's family law department, Ms Clare Robinson.

Clare takes some details from her and explains that the first available appointment is the following Tuesday at 09:00. Mrs Jones asks if she could have a later appointment because, as a result of her visual impairment, she finds it easier to travel around when the streets are less busy. Clare asks if she would prefer a home visit. Mrs Jones is grateful for the offer but explains that she does not want her husband to know anything about the visit. She says that she is able to find her way to the office but asks if a member of staff can guide her into the building from the street as she is not familiar with the office. She also asks if any written documentation can be sent by e-mail or provided in large print format. Clare assures her that this will not be a problem. She also asks if the firm could provide a digital recorder for her to record any meetings so that she can remind herself of discussions and key points that are made. Clare says the firm would be happy to lend her a digital recorder for these purposes and can also let her use it to record instructions rather than e-mailing them if that would be easier for her, but will ask for it back when the matter is completed.

Clare makes the appointment for later on Tuesday and then explains Mrs Jones' needs to Mrs Temple, the solicitor who will be acting for Mrs Jones. She also speaks to the reception staff to make them aware of Mrs Jones' additional needs and Mary Baker, the lead receptionist, says she will wait outside the office to greet Mrs Jones.

On the morning of her appointment, Clare reminds the reception staff that Mrs Jones is coming in and discovers that Mary is off sick and that reception is short staffed as a result. She therefore waits outside for Mrs Jones herself, having checked that the reception area, toilets and meeting room are free from clutter and other trip hazards.

At the meeting Mrs Temple provides Mrs Jones with the digital recorder. She advises her about divorce proceedings and how to approach the division of money and assets. She discusses with her whether she will need additional support given that she will now be living on her own.

Mrs Jones is so impressed by the firm's service that she recommends the firm to her local support group for people who are visually impaired.

B. Working with clients who may lack capacity

Tom O'Sullivan was 38 years old when he was involved in a road traffic accident. On his way home from work as a graphic designer, he was knocked off his bicycle by a lorry turning left across the cycle lane he was travelling in. He suffered a severe closed head injury, a fractured shoulder and massive bruising to both legs. He was in hospital for nearly 6 months and then had several months attending out-patient appointments for physiotherapy and other forms of rehabilitation. When he returned to work over a year after the accident he was only able to perform routine clerical work. In order to keep up mortgage payments and provide for their two young children, Tom's wife returned to full-time work. After a few months of becoming increasingly frustrated with his mundane job, Tom resigned and has barely worked since then.

Shortly after the accident, with the help of his father and supported by his wife, Tom seeks advice from you about claiming damages against the lorry driver and the company that employed him. It took some time to gather together the medical reports and the information in relation to financial loss, but eventually the claim is issued almost three years after the accident. Although by that time Tom had largely recovered from his physical injuries, he complained that he continued to suffer from a complete loss of the senses of smell and taste, some hearing loss, forgetfulness, headaches, anxiety and mood swings. However, he seemed able to provide accurate information relating to the claim and to understand the advice given to him by you and counsel.

The defence denied liability and alleged contributory negligence as Tom had had an after-work drink before cycling home. Tom's counsel had advised that this could be assessed as high as 50 per cent. Following negotiations, the defence made a payment into court and Tom, accompanied by his wife, father and solicitor attended a conference at counsel's office to discuss the offer. During the course of the meeting Tom became increasingly angry, distressed and tearful, but continued to ask relevant questions and put forward cogent arguments for seeking a higher offer. Counsel expresses some concern about Tom's behaviour.

After the conference, you receive a phone call from Tom's wife, saying that she was concerned about personality changes since the accident and particularly his mood swings and depression which had got worse since the conference. She also let slip that he had talked about committing suicide, although he had asked her not to tell anyone for fear of upsetting the family. She asks you to speed up the negotiations and reach a settlement - any settlement - as soon as possible, even if they could not get the amount of damages they wanted, as she was worried about the effect of prolonged court proceedings on Tom's condition.

Points for consideration about litigation and settlement

  • You should ask to see Tom alone to make a careful assessment of Tom's capacity to give you instructions, and to consider whether the presumption of capacity continues to apply or was rebutted by the new information about Tom's condition and behaviour.
  • You should notify counsel of your concerns and keep counsel apprised of the steps that are being taken to ascertain whether Tom has litigation capacity to conduct the proceedings.
  • You will probably decide to seek an expert opinion, for example from a consultant in neuropsychiatric rehabilitation, to assess how Tom's brain injury may be affecting his ability to provide you with instructions. The letter of instruction to the expert should set out clearly the issues relating to his claim and the decisions required of him. The solicitor should also refer to the judgments in Dunhill v Burgin [2014] UKSC 18 and Masterman-Lister v Brutton & Co (Nos. 1 and 2) [2002] EWCA Civ 1889. You will need to seek Tom's consent to the examination by carefully explaining to him that any settlement could be invalid if he were later found to lack capacity to conduct the legal proceedings.
  • If Tom refuses to consent to the medical examination, you will need to make your own assessment of Tom's capacity based on the available evidence. With or without a medical opinion you should keep a careful record of the assessment of capacity and the reasons for the conclusions reached.
  • If you conclude that Tom continues to have capacity to conduct the proceedings, then you can continue to act on Tom's instructions. You should discuss with Tom his wife's concerns and the possible effect of the court proceedings and how Tom can best be supported during the process by you or a third party.
  • If you conclude that Tom now lacks capacity to conduct the proceedings, a litigation friend must be appointed to conduct the proceedings on his behalf. The solicitor should discuss with Tom, his wife and his father who might be the most appropriate person to ask the court to be appointed as Tom's litigation friend.
  • If you consider that there is no one among Tom's family or friends who is able to conduct the case and has no conflict of interest, you may wish to contact the Official Solicitor who is the last resort litigation friend. The Official Solicitor will require confirmation that Tom lacks litigation capacity to conduct the proceedings and information on how Tom's legal costs are to be paid.
  • If you conclude that Tom now lacks capacity to conduct the proceedings and Tom continues to assert his own capacity to instruct you, you should inform the court hearing the claim and an application should be made to determine if Tom has lost capacity and, if so, for the appointment of a litigation friend.

C. Working with clients who may be vulnerable to undue influence

Mrs Bryan is 79 and has early onset dementia. Her previous solicitor acted for her and her late husband in the preparation of their wills.

Mrs Bryan's son Don has arranged an appointment for his mother at your offices to review her will, following the death of her husband. She is brought to the meeting by Don, who remains in the waiting room, while you see Mrs Bryan alone. She tells you during your meeting that she has recently rented out her own home and has moved in to live with Don, and his family. Neither Mrs Bryan nor her son Don are existing clients of your firm.

You receive a letter from Mrs Bryan shortly after the meeting, telling you that as she has decided to live with Don permanently, that she is selling her own house and would like you to handle the conveyancing. She further advises you that she is using the proceeds of sale to pay towards an extension, a conservatory and replacement windows and a new kitchen in Don's property.

Points for consideration:

As Mrs Bryan's arrangements and plans may result in some vulnerability, you should consider the following action:

  • You should (with Mrs Bryan's authority) obtain a copy of her previous will, and discuss her reasons both for the change in solicitor and any substantive changes to the terms of her will.
  • You should have a further face-to-face meeting with Mrs Bryan, to discuss her plans for her property and assess her mental capacity to provide instructions to you in relation to each of the proposed transactions. If you are in doubt, you should seek a medical opinion about her capacity to make the relevant decisions and to instruct you. Your instructions to the medical professional must set out the specific criteria to be considered for each transaction.
  • Mrs Bryan will need advice (inter alia) on whether she should have a legal or beneficial interest in her son's house in exchange for her planned contribution, as she will need an 'exit plan' should the living arrangement break down for any reason.
  • You should also consider whether Mrs Bryan may be at risk of undue influence, most obviously in relation to the money she is planning to 'gift' to Don to spend on his property, where the presumption of undue influence may arise. She may be dependent on Don and his family for her care and accommodation. She may not be entirely happy with the planned course of action but feel unable to express that to her family.
  • You should endeavour to see Mrs Bryan alone, to enable her to explore fully the risks and benefits of the proposed transactions

D. Working with clients with learning disability

John and Mary Smith need advice about possible care proceedings being taken in respect of their two year-old child. They have received a pre-proceedings letter from the local authority which urges them to take legal advice and which gives your firm's name (among others) as appropriate specialists. An appointment has been made, by telephone, by an independent advocate Mrs Jones, who said she was calling on behalf of the Smiths as they both have learning disabilities and find formal telephone conversations and correspondence problematic. She has left her contact number.

Although you are a very experienced care proceedings lawyer, you have not worked with clients with learning disabilities before, or with an independent advocate. Colleagues tell you that, in general terms, independent advocates help the people they work with to participate in decisions that affect their lives, to understand what they are being told and enable them to make their views, opinions and decisions known.

Your colleagues say that, similarly to working with intermediaries in court, having the assistance of an independent advocate is essential for ensuring that you can communicate effectively with your clients and that they can communicate effectively with you.

Points for consideration:

  • Recent case law involving parents with learning difficulties (for example A Father v SBC & Others[2014] EWFC 6 ) emphasises the need to ensure that the processes by which decisions about the children are made are fair and that the parents are sufficiently involved in that process. The Human Rights Act 1998 and the Equality Act 2010 are therefore likely to be particularly relevant for your clients.
  • All aspects of this case, including the Smiths' contact with you and the local authority, how meetings and correspondence are managed, what services are offered, how decisions are reached, what adjustments have been made, will be pertinent when considering whether there has been compliance with the legislation.

Before the meeting

  • Check if the advocate will be attending with the Smiths. Ask what you can do, at this stage, to ensure the Smiths will be able to participate fully. For example, normally, your new clients are asked to complete some paperwork while waiting for their appointment and they are given some generic information about the firm's client services and legal aid. Consider sending this paperwork to Mrs Jones, in advance of the meeting, together with a list of questions you will be asking the Smiths, expressed in plain English. You could also provide and Easyread version for the Smiths. This will give your clients an opportunity to think about their answers, before the meeting.
  • Check the Working Together with Parents Network website for a wide range of information and resources relating to parents with learning disabilities.
  • Start to consider likely case management issues that will arise in the office and at court including the Advocates Gateway resources and toolkits referenced at paragraph 3.3 above.

At the meeting

  • Ensure the Smiths are happy for Mrs Jones to be present at the meeting.
  • Check with the Smiths how you can make communication effective, for you both, during the meeting and with any follow up correspondence or actions.
  • Consider whether there is any conflict of interest as between the Smiths or the potential for a conflict to arise.
  • If you believe that the mental capacity of one or both of the Smiths to be at issue follow the relevant guidance contained within section 4 of this practice note.
  • Without making assumptions about the degree of learning disability a client has, or how this impacts on their ability to engage with you, you know that the following steps are likely to be useful, and may be essential: you may need to repeat things several times, sometimes re-phrasing, but always using short sentences, one concrete idea at a time, in a logical and clear order; you may have to take into account a reduced ability to read, write, concentrate, process and recall information and a difficulty with organisational skills such as time-keeping.
  • You will need to check understanding frequently - not by asking questions that only require a yes/no answer, but by asking short, simple, open questions designed to elicit from your client, for example: what they have understood to be happening, or what they will need to do, or what next steps you will be taking on their behalf.
  • Explain to the Smiths the role of the different professionals such as the children's guardian.
  • Check that the Smiths know where the court building is and how to get there for hearings.

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8 Further Information

8.1 Law Society

8.1.1 The Practice Advice Service for solicitors

The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays or email

8.1.2 Other Law Society practice notes

Lasting powers of attorney
Financial abuse
Providing services to D/deaf and hard of hearing people
Equality and diversity requirements
Gifts of assets
Legal professional privilege
Conflicts of interest

8.1.3 Law Society publications

Assessment of Mental Capacity, 3rd Edition
Equality Act 2010, A guide to the new law

8.2 SRA

8.2.1 Professional Ethics helpline

The SRA provides advice for solicitors on the SRA Handbook, call 0370 606 2577 (inside the UK), 09.00 to 17.00, Monday to Friday.

8.2.2 Reporting another professional

The SRA provides guidance reporting misconduct.

8.3 Other resources

8.3.1 Enabling access to your services for vulnerable clients

Various charities and other organisations have produced online guidance for professionals on assisting particular groups of clients. This is a selection:

Action on Hearing Loss
Advocates Gateway
Age UK
Alzheimer's Society
Business Disability Forum
Changing Faces
Disability Rights UK
Foundation for people with learning disabilities - criminal justice resources
General Medical Council - learning disability resources
Legal Services Consumer Panel
National Autistic Society

8.3.2 Mental Capacity Act practice and procedure

MCA 2005 Code of Practice
Social Care Institute for Excellence - MCA Directory
Court of Protection Handbook Guidance
British Medical Association MCA Toolkit
39 Essex Chambers - Mental Capacity Newsletter

8.4 General

Office of the Official Solicitor and Public Trustee

8.5 Acknowledgments

The Law Society kindly acknowledges the work of Jo Honigmann (Just Equality), Penny Letts and the Law Society's Mental Health and Disability Committee in developing this practice note.

The Law Society would also like thank Nadine Tilbury and Beth Tarleton at the Norah Fry Research Centre (Bristol University) for their assistance in reviewing the practice note and the provision of a case study in relation to clients with learning disability.

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1 Blankley v Central Manchester & Manchester Children's University Hospitals NHS Trust [2015] EWCA Civ 18

2 The World Wide Web Consortium produces recommendations for website accessibility

3 Norah Fry Centre Research, What happens when people with learning disabilities access legal services?  

4 The Law Society practice note on providing services to deaf/hard of hearing people provides more guidance

5 RP v Nottingham City Council and Official Solicitor [2008] EWCA Civ 4

6 PC & Anor v City of York Council [2013] EWCA Civ 478

7 Masterman-Lister v Brutton & Co [2003] 3 All ER 162 confirmed in Dunhill v Burgin [2014] UKSC 18

8 Sheffield City Council v E and another [2005] Fam 326 per Munby J at para 38

9 Part 21 Civil Procedure Rules 1998, Part 15 Family Procedure Rules 2010, Part 17 Court of Protection Rules 2007

10 Templeman in Kenward v Adams [1975] CLY 3591; The Times, 29 November, 1975

11 Baker Tilly v Makar [2013] EWHC 759 (QB)

12 See Blankley v Central Manchester and Manchester Children’'s University Hospitals NHS Trust [2015] EWCA Civ 18

13 If a suitable panel is established, it may in due course be possible for solicitors to be appointed directly to represent the subject of proceedings before the Court of Protection as 'accredited legal representatives'.

14 See Re L (vulnerable Adults with Capacity: Court's Jurisdiction) [2012] EWC CIV 253

15 See A Local Authority v DL & Ors [2011] EWHC 1022 (Fam)

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