All About Estates

Presumption of Capacity and Duty of a Solicitor

A person who is over the age of 18 is presumed to be capable of entering into a contract, and the rest of the world is entitled to rely upon this presumption unless they have reasonable grounds to believe otherwise.  However, the court in England was recently asked the question of whether a solicitor dealing with an elderly person had “no reasonable grounds to suspect incapacity”; to prove the negative and to set a standard with respect to the issue of contemporaneous notes. 

Thanks to Mary-Alice Thompson who drew our attention to the recent decision of the English High Court of Justice, Queen’s Bench Division in Thorpe v. Fellowes [2011] EWHC 61 (QB).  The solicitor was retained in 2003 by a 77-year-old woman to sell her home and pay the proceeds to her daughter.  The solicitor was later sued by the client’s son who alleged that the solicitor was negligent in failing to test the mental capacity of his client.  

On the issue of contemporaneous notes, not surprisingly the solicitor had no independent recollection of the file.  This made her notes extremely important.   The solicitor had no suspicion that the client may be suffering from dementia, but still kept detailed records, which included notes that the client “fully understood what was going on and was adamant that she wants to sell this property and purchase another property with her daughter so that she does not have to deal with any maintenance of the house.”     

A neurologist also gave expert evidence based upon medical records and other contemporaneous documents to describe what the client may have been like at the time.  This evidence (which the Court accepted) that  the client was likely suffering from dementia in 2003, did not override the fact that the client still had capacity to instruct on the sale or that the solicitor was competent. 

On the issue of the solicitor’s duties, the court said that a solicitor is generally “only required to make inquiries as to a person’s capacity to contract if there are circumstances such as to raise doubt as to this in the mind of a reasonably competent practitioner…  The standard of care is not that of a particularly meticulous and conscientious practitioner.  The test is what a reasonably competent practitioner would do having regard to the standards normally adopted in his profession.”  And further, that “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.”    Here Here!

Lesson Learned:  We should remember that persons of all ages are entitled to the benefit of the presumption of capacity.  Solicitors are to apply such presumption in the absence of evidence to the contrary, but should never stick their heads in the sand and ignore evidence of potential incapacity.  “Being older” is not in itself cause to question capacity, but the importance of keeping good notes so that one can later demonstrate that no grounds for concern existed, or that any concerns were properly addressed, should never be underestimated.

Until next time,


About Jasmine Sweatman