The role of legal service providers in assessing capacity has been a long-standing debate in the profession, especially concerning Wills and probate issues that generally provide services to more vulnerable individuals.
A recent survey, carried out by Financial Reporter, has found that the majority of people providing legal services to vulnerable people, that are more likely to lose capacity, would prefer an holistic approach that is widely adopted by all professionals.
Unfortunately, many professionals remain concerned with the lack of consistency in approaches adopted by firms supplying similar services to clients with potential capacity issues.
Reassuringly, 96% of advisers feel adept and experienced in being able to identify clients that lack capacity.
However, only 7% feel that the current system is offering adequate protections for both the legal service provider and the client.
Nearly two thirds of respondents would benefit from additional support and guidance with regards to how communication with any vulnerable client or those lacking capacity are recorded.
It is this issue where many practitioners vary in their approaches because guidance is relatively limited. Some experienced professionals rely on their previous encounters to recognise capacity. They would informally look for warning signs within the client instructions; if a client wanted to cut their children out of a Will and leave it to a neighbour for example. They would then flag the issue and follow procedures. It would be at this point that official records would be kept.
Others, more pragmatic and meticulous, believe that a firm needs to be a lot more proactive in recording their attempts to elicit a threshold of understanding before carrying out the work. Some agreed that a standard proforma of questions, asked in advance of the work, could be enough to decide whether an individual possessed capacity. The paper trail would be able to protect them in the future if the documents were contested.
Over half (53%) also wanted consistency and clarity regarding when vulnerable clients may need representation and support.
55% of the respondents thought that their personal understanding of the Mental Capacity Act 2005 and the issues surrounding capacity would benefit from further research, with 37% looking for more training on the various health issues commonly attributed to vulnerable clients and those lacking capacity.
Rozi Jones, editor of Financial Reporter, said: “It’s clear that advisers are well-informed when it comes to recognising vulnerable clients – while the obvious circumstances such as old age, difficulties with language barriers, or lack of mental capacity were high on advisers’ radar, the survey also revealed that advisers are demonstrating real sensitivity and insight when it comes to acknowledging grey areas for vulnerability. Some respondents, for example, were attuned to the impact that big changes in life circumstances could have on their clients’ decision-making and understanding, and issues such as addiction and domestic violence were also considered by respondents.
“It’s encouraging to see such an empathetic, nuanced approach to vulnerability, and shows that advisers are more than capable of interpreting the regulator’s broad definition of vulnerable clients to ensure that their clients are given the best possible service. However, it’s also clear that while advisers are well-placed to spot a vulnerable person, many of them feel they could benefit from more concrete support when it comes to practical approaches to tackling these issues and how best to proceed.”
Click here to read the full report.
Do you think advisers need more clear and consistent approaches when working with vulnerable clients or those lacking capacity?
