Client’s advanced age does not imply duty to test capacity

3 February 2011

A solicitor is not obliged to obtain medical evidence of mental capacity just because a client is elderly, the England & Wales High Court has ruled.

The case concerned Mrs Leonie Leanthie Hill, who in 2003 had instructed a firm of solicitors to sell her home. At the time she was 77 years old and suffering from a degree of dementia.

The solicitors, Fellowes, duly sold the property. they remitted the proceeds of the sale to Mrs Hill’s daughter Leilith Alexander, who had originally contacted them about Mrs Hill’s wishes.

These events angered Mrs Hill’s son Rudyard Kipling Thorpe. He sued the solicitors for negligence leading to Mrs Hill’s loss of the house, alleging that the trainee solicitor who handled the deal should have inquired about her mental capacity.

Both parties to the High Court litigation then instructed an expert to asses the old lady’s mental state. The expert found her condition – a progressive form of dementia – would have produced some mental impairment, but still left her with the capacity to make a decision about her financial affairs.

Giving judgement against the claimant, the judge said it would have been “wholly inappropriate” Fellowes to seek medical advice in relation to Mrs Hill’s mental capacity.

There was, he said “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”. To do so would, he said, be “insulting and unnecessary” (Thorpe v Fellowes [2011] EWHC 61 QB).





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