High Court: “Insulting” to make solicitors check elderly clients’ capacity without reason

Elderly clients: no need to check capacity as a matter of course

Solicitors have no need to investigate an elderly person’s capacity to contract without good reason and any such duty on them would be “insulting and unnecessary”, a High Court judge has said.

Dismissing a claim that a solicitors’ firm had acted negligently when acting for an elderly woman with dementia, Mrs Justice Sharp said the claimant had failed to establish that a lack of capacity “would have been evident to a reasonably competent solicitor”.

The case, Rudyard Kipling Thorpe (Litigation Friend of Leonie Leanthie Hill) v Fellowes Solicitors LLP [2011] EWHC 61 (QB), involved the sale of a house by a 77-year-old woman who, at the time of instructions being taken, was suffering from a progressive form of dementia.

The claimant, her son, alleged, among other things, a breach of duty on the part of the trainee solicitor for having failed to appreciate that the vendor was a vulnerable person or to inquire about her capacity. His case was weakened by the fact that a jointly instructed neurological expert gave evidence that the woman had capacity despite having dementia, and also that in any case a lack of capacity probably would not have been obvious.

The judge said: “There is plainly no duty upon solicitors in general to obtain medical evidence on every occasion upon which they are instructed by an elderly client just in case they lack capacity. Such a requirement would be insulting and unnecessary.”

The solicitor in the case had acted properly and had satisfied herself that the vendor was able to provide instructions. In the absence of signs of dementia, the judge continued, it would have been “wholly inappropriate” to seek medical advice on the vendor’s mental health.

    Readers Comments

  • Katherine C. Pearson says:

    As a law professor in the far off colonies. (Pennsylvania) who teaches courses on “law and aging” issues, I can see the reasons for this decision, and yet I also question the implications of the decision.

    On the one hand, it is important to respect the presumptive capacity of persons of any age. On the other hand, I wonder whether other facts about the transaction (including to whom and for what price the home was being sold) should be considered in determining whether the soliticor provided reasonable legal services.

    As one court has wisely warned, “A solicitor or other professional person does not fulfil his obligation to a client or patient by simply doing what he is asked or instructed to do. He owes such person a duty to exercise his professional skill and judgment and he does not fulfil that duty by blithely following instructions without stopping to consider whether to do so is appropriate.” See Carroll v. Carroll, [1999] 4. I.R. 241 (Ireland).

  • Katherine C. Pearson says:

    Additional reaction from the colonies.

    I have now had the opportunity to read the full decision of the Thorpe case, and indeed the additional facts regarding the solicitor’s work are important. The solicitor communicated with the older woman in writing and received written instructions from her directing the sale to be prepared; the solicitor insisted on meeting with the woman; the solicitor wanted to “make sure that she actually did want to sell the property and was not being forced to do so.” The price of the property was not facially suspect. The solicitor carefully documented these facts contemporaneously with the events for her legal file. There are some facts that could suggest undue influence (daughter was primary intermediary and was present during meetings between solicitor and mother), but the lawyer appears to have been careful in considering whether the transaction was the result of the mother’s independently expressed decision.

    Thus, perhaps the case should not be read as standing for the proposition that a lawyer is not required to question competency of a 77 year old client, but rather that based on the transactional facts as a whole, there was no reason for the lawyer to do so.

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