Vulnerable Clients
Vulnerable Clients06 March 2019 Written by James & George Collie

vulnerableTo some it may appear that if we are dealing with work for, for example, your parents or an aunt or uncle, it can seem that things cannot be started off quite as smoothly and easily as wished.  However, we are constrained by guidance issued by the Law Society of Scotland in such cases.

 

Like it, or not, your relatives could be classed as “Vulnerable Clients” in the eyes of the Law Society.  This applies where there is a client or a potential client, who may lack full mental capacity, who may give us instructions to carry out work on their behalf such as making a Will, granting a Power of Attorney, making gifts of money or transferring ownership of a property.  Even although the initial contact with us may be made by you or another member of the family, the actual client or potential client is the relative for whom the work will be done.

 

As a result, there are a few things that we must do.  Not only do we have to issue a Letter of Engagement and Terms of Business to the client or potential client, but we also have to keep on file evidence of identity including something with a photograph. We do appreciate that this can sometimes be difficult to obtain for an elderly person but fortunately the usual bus pass will be enough!  We have to meet that person, and have to be satisfied that the client is able to understand the instructions they are giving us and also the potential consequences of what they are asking us to do.  Obviously, if it is a client that we have known for a while, then this can be quite easy, whereas if it is someone we are meeting for the first time, it may be tricky.

 

Solicitors are one of the few groups of people authorised under the Adults with Incapacity (Scotland) Act 2000 to assess whether or not the client who is signing a Power of Attorney has sufficient mental capacity to do so.  If we are not totally certain about this we are authorised to consult with another person, and it is not uncommon for us in these circumstances to contact either someone’s GP or even Psychiatrist to assist.  Unfortunately, they will not discuss matters with us until the Client concerned has given his or her consent.  However, the definition of “capacity” in those circumstances relates only to the granting of a Power of Attorney and not to others matters in general.

 

The Law Society is worried about a Vulnerable Client potentially being subject to influence by another person.  That is why, particularly when completing Powers of Attorney, we may ask to see a client alone for at least a few minutes. You will see that whilst we will try and progress such matters in as “user friendly” a way as possible, there are things that we are obliged to do and in a certain way which to the public at large, possibly even to our clients themselves, may seem excessive!

 

Should you wish further guidance on the granting of Powers of Attorney or making a Will, whether for yourself or a relative, please contact Forbes McLennan.

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