1 Introduction
1.1 It must be recognised that all individuals, no matter how vulnerable, have a fundamental right to control and manage their affairs and to have access to a solicitor. However, vulnerable/older adults also have a right to be protected against financial abuse. Solicitors, working in co-operation with others caring for an individual, can have a pivotal role to play in ensuring that the correct balance is achieved.
1.2 As a result of several studies undertaken in recent years, the issue of the financial abuse of vulnerable/older people has come into focus. There is a greater awareness of this issue generally, and, in particular, among those who provide frontline services to this group. For instance, the Health Service Executive (HSE) now trains its staff to be alert to the issue and to respond appropriately. Likewise, the Health Information and Quality Authority (HIQA) has introduced new standards for dealing with this problem.
1.3 Solicitors have always had a role in detecting and preventing financial abuse, for instance, when making wills for clients or transferring their assets to others. The legal issues of capacity and undue influence must always be addressed by solicitors. The aim of this practice note is to focus on the practical steps to be taken by solicitors when dealing with vulnerable/older adults, so as to ensure that they fulfil their ethical and professional obligations to these clients. The risk factors for abuse of any type are outlined. The importance of the solicitor identifying which family member is actually the client is discussed. The related issue of potential conflict of interests is addressed. For example, if a solicitor is asked by a son/daughter to visit an elderly parent in hospital or a nursing home, what issues arise for consideration by the solicitor?
1.4 Finally, guidelines are offered for solicitors who are visiting clients in a hospital or nursing-home setting. It is suggested that solicitors follow certain procedures which take into account the fact that the staff of the unit they are visiting also have obligations in the matter.
1.5 The results of the study report: Abuse and Neglect of Older People in Ireland 1 indicated that financial abuse (which included being forced to give money or property, forced/misled to sign over ownership of home or property, forced to change a will and other issues) featured as one of the most prevalent areas of abuse. The study also indicated that the most frequent identified group of perpetrators of abuse, and within a relationship of trust, were adult children, followed by other relatives and spouses and partners
1.6 The National Quality Standards for Residential Care Settings for Older People in Ireland 2 provide that there must be a policy on the prevention, detection and response to abuse in any form within each residential care setting. The policy outlines the procedures for the prevention of abuse, responding to suspicion, allegation or evidence of abuse and reporting concerns and/or allegations of abuse to3, the Garda Síochána and the Chief Inspector of Social Services. In addition, the HSE has formulated a number of guidelines for its staff, which provide that where staff have concerns about the possible financial abuse of older people in a residential care setting, HIQA should be notified within three days of the concern being raised. The Law Society has formulated these guidelines to complement these various policy objectives.
2 Risk factors
2.1 The most significant risk factors to emerge in the study conducted by the National Centre for the Protection of Older People(NCPOP) 4 were related to poor or below-average health, whether as perceived by the person themselves, or as measured clinically. Below-average physical health increased a person’s risk of mistreatment (abuse) three-fold, while below-average mental health resulted in a six-fold increase of risk. For the vast majority of older people who took part in the NCPOP survey, the experiences they described had a serious impact on them, even though a large number of them did not report their experiences to anyone.
2.2 A solicitor acting for an elderly client has an obligation to understand the risk factors involved, and to ensure that the advice they are giving is in the best interest of the client, taking into account all of the relevant circumstances. A solicitor must inform him/herself as to what these relevant circumstances are.
3 Legal issues
3.1 Solicitors have a duty of care towards their clients, and this duty is heightened when acting for a vulnerable/elderly client, or a client whose capacity to make decisions is diminishing. In some cases, even though a person may have the capacity to contract, the quality of the consent may not be free and voluntary in the fullest sense because of the influence of others. In other cases, a person may simply take advantage of an older person, which may amount to what is considered in law as “unconscionable conduct”. This may give rise to a question as to whether the transaction in question was in the best interests of the older client.5
(i) Capacity: 6
There is a presumption that a person who has reached the age of 18 years has capacity to make decisions. It is important that solicitors do not assume that, because of vulnerability or age, that a person lacks capacity. On the other hand, people with age-related disabilities, for example, dementia, may have excellent long-term memory but have difficulty in making decisions. Where questions arise as to the ability of a person to make decisions, an assessment of capacity is necessary. The assessment of capacity should be carried out sensitively, and a solicitor should assist the client insofar as possible, to make a decision and to give instructions. This may mean taking more time to ensure that the solicitor obtains the necessary information to make the assessment and that the client understands the issues.
Disorientation or confusion should not be mistaken for a lack of capacity. In this context, it may be necessary to organise visits with the client at a time of day that is the most suitable or best time, for the client. The degree of capacity required depends on the significance of the decision to be made. A person may lack the capacity to make a particular decision or a range of decisions. A lack of capacity means that the person lacks the ability to understand the nature of the decision, or the ability to assimilate the information necessary to make the decision, or the risks and consequences of a decision. A solicitor in assessing capacity must make sure that the correct test of capacity is applied in relation to the particular transaction in question7, taking account of the individual circumstances.
Capacity to make a decision with legal consequences is a legal test and not a medical test. Medical evidence may be of assistance to a solicitor in determining if the client has a medical condition that may affect the client’s ability to make a decision, but is not necessarily indicative of a lack of capacity. It is necessary for a solicitor to satisfy him/herself that the client has the capacity to give instructions and to understand the implications of the decision with regard to, for example the transfer of assets, the making of a will, the appointment of an attorney, or the appointment of an agent for the purpose of collecting pension benefit.
A solicitor who wishes to obtain a medical report should request the client’s consent to obtain the medical report. When requesting the medical report from the medical expert, the solicitor should indicate the reason for which the report is required. The medical report must be contemporaneous, and the client must be examined in or about the time the report is required. If the client is unable to give consent to the obtaining of the medical report, then the solicitor should, in seeking such a report, have regard to the client’s right to privacy and confidentiality. It should be noted that a solicitor may make limited disclosure of otherwise confidential information to seek assistance from a medical expert.
Where capacity is at issue, it is necessary for a solicitor to take detailed contemporaneous file notes. If the client’s mental capacity is subsequently challenged, the file notes will be of great assistance.
(ii) Undue influence: 8
A solicitor should see the client alone to ensure that the client is acting freely, to confirm the client’s wishes and to avoid undue influence by family members or other persons. “The doctrine of undue influence enables a court to set aside transfers of property inter vivos whenever it appears that one party has not freely consented to the transaction.” 9
Undue influence may be actual (express influence of one person over another and improper conduct) or presumed (which arises from a relationship of trust and confidence, together with an improvident transaction). Actual undue influence requires proof of improper conduct; whereas presumed undue influence does not require proof that improper influence was exercised – it will be for the recipient of the transferred assets to rebut the presumption and establish that the transaction was not improper, but was the free outcome of the other person’s uninfluenced will:
“The actual fact of the transaction and the circumstances surrounding it was such as could be relied on as well as the relationship itself to raise the presumption. Moreover, it is not necessary that the court find a wrongful act. Where the presumption arises, the court intervenes in order to prevent an abuse of influence possessed by one over the other” (see Carroll v Carroll [2000] 1 ILRM 210 10.
Separate representation is an important factor in determining whether the transfer is a purely voluntary act and likely to rebut the claim of improper conduct.
The courts have reviewed a solicitor’s duty in cases of undue influence. In Kenward v Adams 11, the court stated that a solicitor who is instructed to advise a person who may be subject to undue influence must bear in mind that it is not sufficient that the client understands the nature and affect of the transaction, if the client is so affected by the influence of the other that the client cannot make an independent decision of his/her own. It is not sufficient for the solicitor to simply explain the documentation and ensure that the client understands the nature of the transaction and wishes to carry it out. Rather, a solicitor’s duty is to satisfy him/herself that the client is free from improper influence; and the first step must be to ensure whether the transaction is one into which the client could sensibly be advised to enter if free from influence. If the solicitor is not so satisfied, it is the solicitor’s duty to advise the client not to enter into the transaction.
In Carroll v Carroll 12, the Supreme Court stated that “a solicitor or other professional person does not fulfil his obligation to his client or patient by simply doing what he is asked or instructed to do. He owes such a 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”.
(iii) Unconscionable conduct
Unconscionable dealing is a separate equitable doctrine to undue influence. Undue influence looks to the quality of the consent or assent of the weaker party, while unconscionable dealing looks to the conduct of the stronger party.
Unconscionable conduct has been described 13 as taking unconscientious advantage of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in their best interests. To attract the equitable jurisdiction, a person who takes unconscientious advantage of another need only be aware of facts raising that possibility in the mind of a reasonable person.
Shanley J, in the High Court, stated that: “While I have concluded that the 1990 transaction should be set aside on the grounds of undue influence, I should also state that I am also satisfied that the transaction would be set aside, and should be set aside, on the grounds that it was an improvident transaction. It is worth recalling that the donor disposing of the … premises was disposing of the only real asset he possessed.”
The Supreme Court was also critical of the fact that the solicitor in Carroll v Carroll did not have knowledge of all the relevant circumstances that were essential in order to advise the client, taking all factors into account, whether the client should proceed with the transaction, including advising the client to make provision for his future needs.
In the Estate of Lily Louisa Morris deceased 14, the court found that the transaction in question was manifestly disadvantageous to Mrs Morris, in that she gave her house away and, in the circumstances, it was highly imprudent to do so.
In Hammond v Osborn and another 15, Sir Martin Nourse stated that the elderly Mr Pritler was not told the effect of the transfer: “No consideration was given as to whether those assets would be sufficient to satisfy his future needs. Nor was any consideration given to the extremely serious fiscal consequences of the realisation of his investments.”
A solicitor must ensure that any transaction that a vulnerable/older client is entering into is in that client’s best interest. This includes advising the client that they have an obligation to make provision for themselves, including their own future care needs.16 Solicitors advising clients on making provision for future care needs should also inform themselves fully of the provisions of the Nursing Home Support Scheme Act 2009. 17
4 Who is the client/Conflict of interest?
4.1 Solicitors have a role in detecting and preventing the abuse of older people, and this is particularly so in the case of financial abuse, where the making of a will or the transfer of assets do require the assistance of a solicitor. When an older person is admitted to hospital or residential care, it may be that they need to make decisions about the management of their affairs, and often need legal advice to do so. It may simply not be convenient for some older people to make personal contact with their solicitor to visit them, and may ask a family member or friend to request their solicitor to visit. In other cases, it may be that the family members/relatives themselves are anxious that the older person’s affairs should be organised, and it is they who may make contact with a solicitor to visit the older relative.
4.2 It is important that a solicitor is clear who they are acting for and who they are advising, particularly with regard to the transfer of assets or the making of a will by older clients. When a solicitor is approached, which may be by a family member/friend/potential donee, the solicitor should clarify who they will be acting for and who will, in fact, be giving instructions. A solicitor must be careful not to take indirect instructions on behalf of an older client, but arrange to take instructions personally and without any other members of the family or other persons being present. If a solicitor is already the solicitor for a potential donor (older person), then they should refuse instructions from a donee (family member) and act in the best interest of their client – the older person. Where the client of the solicitor is the family member, it is imperative that the solicitor insist that the older person has separate legal representation. The solicitor in question should not, in any circumstances, act for both parties as there is a potential conflict of interest. The circumstances of any request to visit a client in a hospital or nursing home should be clearly documented in a file note.
(i) Is the older person a new client?
Before agreeing to act for an older person who may be a potential new client, it is important that a solicitor check with the potential client if they have been advised by another solicitor previously. If the older person has been advised by another solicitor, it would be important to establish whether or not the client has now decided to change adviser. A solicitor should be slow to take on a new elderly client unless the potential new client has indicated compelling reasons for doing so. If there is no clear intention to change adviser, then it is prudent to advise the older person to consult again with their original adviser. However, if the client indicates that they wish to change adviser, it would be important to establish the facts as to why this is so. It is also important for the solicitor to establish if the wish to change adviser is the clear intention of the older person, and is not being influenced by the wish of any other person. In such circumstances, it is prudent for a solicitor to obtain the potential new client’s consent to contact the previous adviser.
(ii) Is the older person seeking advice for the first time?
It may be the case that the older person has no previous adviser and wishes to consult with regard to the organisation/management of their affairs. In such circumstances, it is important for a solicitor to establish that it is the clear wish of the potential client to organise their affairs, and that they are not being induced to do so by the influence of family members or another person. For example, an older person may not have made any will previously and may be encouraged now by family members to do so. A solicitor should be suspicious where an older person has not taken any steps previously to seek legal advice with regard to their affairs and now the matter has become an urgent one. The urgency may be being dictated by the family member and the solicitor should be able to decipher this fact. It is important that the older person is seen alone in either communicating or formulating their wishes, in addition to the giving of any instructions. A solicitor must be satisfied that there is a clear intention by the older person to organise their affairs and that they have the capacity to give instructions free from the influences of any other person.
(iii) Is the older person an existing client?
If the older person is an existing client and the solicitor is being asked to visit the older person by a family member or relative, it is important that the solicitor obtain clear communication and instructions from the older person directly of their wish to give instructions. Ensure that any proposal to transfer property or assets at this stage is in the best interests of the client, and not at the instigation of adult children who are impatient to receive their inheritance or who consider the needs of the older person to be secondary to their own. Make sure that the client, in making any decision to transfer property, has considered not only the benefits, but also the risks involved.
4.3 The issue of client confidentiality arises in each of the above scenarios, and a solicitor must not breach such confidentiality, even where a request to visit the client may not have come directly from the client. The client, of course, may direct a solicitor to discuss issues with regard to their affairs with a family member, and may wish to obtain the views of a family member, but the solicitor must ensure that instructions come directly from the client.
5 Access to a solicitor
5.1 An older person, no matter how vulnerable, has a fundamental constitutional and human right to privacy and to consult with their solicitor without the requirement to inform any other person of their doing so. The HIQA guidelines, National Quality Standards for Residential Care Settings for Older People in Ireland, acknowledges a resident’s right to privacy.18 The guidelines also acknowledge the right to autonomy and independence of a resident, to include the right to manage their own financial affairs for as long as they wish, and have the capacity, to do so. However, as stated at 1.4 above, staff in residential-care settings have particular obligations to protect older/vulnerable people from abuse or potential abuse.19
In addition, residential units are obliged to maintain certain records with regard to residents, and good practice suggests that a record should be made of any ‘visitors’ visiting the resident. Solicitors should be alert to these various requirements and, to minimise any perceived difficulty in visiting a client, should encourage their client to inform the residential unit of the wish to have access to legal advice, and to inform the residential unit of any impending visit by the solicitor.
5.2 Solicitors must be alert to the fact that signs of diminished or diminishing capacity (which are also observed by others) puts a solicitor on notice that the client’s capacity may be at issue, but is only the initial step for a solicitor in evaluating a client’s capacity. A solicitor must act in the best interest of their client, and this includes assisting the client maximise their decision-making ability. A solicitor having observed ‘red flags’ or ‘warning signs’ about the client’s capacity, must then evaluate if the client has the capacity to give instructions and carry out the specific transaction. (The test of capacity may be different for different transactions.) This should be the approach taken unless it is very evident that the client simply does not have the capacity to proceed to this stage. This can place solicitors in a difficult position when attempts are made to dissuade a solicitor from visiting the client where there are perceived deficits in capacity.
5.3 It is a matter for each individual solicitor to exercise professional judgement as to how to deal with sensitive situations that arise in carrying out their professional duty to their client. Taking account of the issues addressed in these guidelines, the following may be of assistance for those solicitors visiting clients in residential care settings:
- As stated above, and subject to client agreeing, the residential care unit should be informed of proposed visit.
- Insofar as possible, a solicitor should try and arrange private space to be available to consult with the client.
- Solicitors, who receive a communication to visit a client in a residential care unit, should arrange to visit as soon as possible.20
- If a solicitor arriving to see a client at a residential care facility is alerted to the possibility that the client may have diminished capacity, the solicitor should acknowledge the concerns raised by the communicator, but point out that the solicitor has a positive duty to satisfy him/herself as to the client’s capacity.
- In the event that a solicitor is requested to postpone visiting a client in a residential care unit, a solicitor should use his/her professional judgement as to whether the visit should, in fact, be postponed. It is a matter for the client and solicitor to decide if the consultation should proceed.21 If the client is temporarily unwell, it may be prudent to postpone the visit for a short period and arrange to visit at a better time for the client.
- If a solicitor is being refused access to visit a client (which should not arise), then the solicitor should deal directly with a senior member of staff to arrange for the visit with the client to take place.
- A solicitor who is attending a client in a residential care facility, for the purpose of having the client execute a document that requires to be witnessed, the solicitor should arrange to bring another person who can act as witness.
6 Conclusion
It is important for a solicitor who may be faced with sensitive and difficult situations when dealing with vulnerable/elderly clients, or potential clients, to make a clear contemporaneous file note. The reasons why advice was given, including, perhaps, why the solicitor suggested to a client not to proceed with a particular transaction, should be clearly stated. It is particularly important that detailed file notes are made if an assessment of capacity is necessary when taking instructions from a client, or during any part of a transaction with a client. If a solicitor is asked to visit an elderly client in a residential care facility, the particulars of that request to visit should also be documented. If concerns about a client’s capacity were communicated to a solicitor, a clear file note of that communication and solicitor’s response should also be recorded.
Related practice notes:
This practice note is supplemental to the following practice notes published by the Law Society (see www.lawsociety.ie):
Footnotes
1. The National Centre for the Protection of Older People (NCPOP) at University College Dublin published in November 2010. The study was funded by the HSE.
2. Health Information and Quality Authority (HIQA) February 2009
3. The HSE has appointed Dedicated Elder Abuse Officers who are responsible for the development, implementation and evaluation of the HSE’s response to elder abuse. A National Steering Committee on Elder Abuse and Area Committees, have been established to oversee and ensure a nationally consistent approach in the provision of Elder Abuse Services by the HSE.
4. Abuse and Neglect of Older People in Ireland, November 2010, at page 69
5. Carroll v Carroll [1999] 4IR
6. The Government Legislation Programme Spring 2012 indicates that the Mental Capacity Bill will be published in early 2012.
7. See Law Society’s Guidelines on Drafting Wills for the Elderly Client, January/February 2009 and Gifts: Acting for an Elderly Client April 2009.
8. See Law Society’s Guidelines Gifts: Acting for an Elderly Client, April 2009
9. Bourke v O’Donnell & Others [2010] IEHC 348
10. Hedigan J in Bourke v O’Donnell & Others [2010] IEHC 348
11. The Times, 29 November 1975
12. [199] 4IR
13. Mason J in Commercial Bank v Amadio (1983)151 CLR 447
14. [2001] WTLR 1137
15. [2002] EWCA Civ 885
16. This is particularly important, given the predicted rise in number of people aged over 65 and the predicted improvements in life expectancy. The study Fifty Plus in Ireland 2011: First Results from the Irish Longitudinal Study on Ageing (TILDA) states that that the proportion of people over the age of 65 will double in the next 20 years. The number of those aged 80 and over is expected to rise by 45% over the next 10 years. The study also predicted that the life expectancy for males will increase from 76.7 years in 2005 to 86.5 in 2041. For females it is expected that life expectancy will increase from 81.5 year in 2005 to 88.2 years in 2041.
17. See also Nursing Home Support Scheme information booklet from the Department of Health. This scheme is currently limited to people in residential care settings outside of their own home.
18. HIQA National Quality Standards for Residential Care Settings for Older People in Ireland (2009), Standard 4 provides: “Each resident’s right to privacy and dignity is respected.”
19. HIQA National Quality Standards for Residential Care Settings for Older People in Ireland (2009), Standard 8 obliges a residential care setting as follows: “There is a policy on the prevention, detection and response to abuse within the residential care setting. The policy outlines procedures for:
- The prevention of abuse
- Responding to suspicion, allegation or evidence of abuse or neglect
- Reporting concerns and/or allegations of abuse, to the Health Service Executive, the Garda Síochána and the Chief Inspector.”
20. In X v Woollcombe-Yonge [2001]WTLR, Neuberger J held that seven days would be a sufficiently short period in most cases where the client was elderly or likely to die but “where there is a plain and substantial risk of the client’s imminent death, anything other than a handwritten rough codicil prepared on the spot for signature may be negligent. It is a question of the solicitor’s judgement based on his assessment of the client’s age and health”.
21. In Hooper v Fynmores (a firm) [2002] Lloyd’s Rep PN, a solicitor who cancelled an appointment to visit a client in hospital for execution of a will, was held liable to a disappointed beneficiary when the client died without executing the will. The court held that there is a positive duty on the solicitor to satisfy himself that any delay caused by the solicitor is not to the client’s detriment.