A monthly column of examples from the files of the Legal Services Ombudsman

Elderly and vulnerable clients

Solicitors have particular responsibilities towards their elderly clients, who can sometimes be in a vulnerable position.

It is important that solicitors take particular care when handling instructions from such clients and that, faced with complaints involving the elderly, the Office for the Supervision of Solicitors (OSS) recognises that sometimes a more imaginative approach is needed.

Pocket money

A representative of a national charity contacted the OSS on behalf of Ms A, an elderly woman living in a residential care home.

She had been a resident of the care home for 16 months, during which time she had not received any spending money from her own savings, which were being looked after by her solicitors.

The charity told the OSS that Ms A depended on residents and staff to give her the occasional packet of sweets, or to treat her to have her hair done - a situation which was clearly unacceptable.

The OSS pursued the complaint, and the solicitor responsible admitted 'total inadequacy' in dealing with Ms A's case.

The OSS began to conciliate on Ms A's behalf.

It was agreed that Ms A would start to receive 16.05 a week pocket money.

Regrettably, the OSS then decided that it was acting outside its remit by becoming involved in a complaint made by an 'unauthorised third party' - the charity.

Accordingly, it closed the file.

Shortly afterwards, Ms A died.

The ombudsman criticised the OSS for failing to adopt a more pragmatic approach to the complaint.

There were exceptional circumstances in Ms A's case.

She had no family to protect her interests.

She was blind and suffering from dementia.

The solicitor concerned had accepted responsibility for the situation, and was prepared to conciliate the complaint.

Following this case, the OSS consulted with the charity on the best way to handle this sort of situation in the future.

As a result, the OSS has now adopted a more flexible approach to dealing with complaints from - or on behalf of - people with impaired mental capacity.

The solicitor in this case was disciplined.

Is adequate always enough?

Mr M complained that the solicitors instructed to draw up a power of attorney for his elderly aunt, who was in poor health in a nursing home, had failed to check whether she had already made a will, and if so, whether she wanted to alter its terms.

He also said that, despite describing his aunt as being in a 'fragile state of mind' when she signed the power of attorney, the firm had failed to obtain medical confirmation that she was capable of understanding the document which she signed.

The OSS noted that the firm had actually drawn up a will for Mr M's aunt some years earlier.

However, the OSS said that, while it might have been best practice to have ascertained the full picture before visiting her, and to check whether the will was still relevant, failure to do so was not misconduct.

It explained the legal presumption of capacity and said that, although it would be best practice to obtain a doctor's certificate when a client was resident in a nursing home, the solicitor was not bound to do so.

The ombudsman endorsed the OSS's stance on best practice and concluded that its decision on the complaint was reasonable.

However, she suggested that the firm could have done more to ensure that it provided a better service for an elderly, and potentially vulnerable, client.

Although the firm was expected to provide an adequate, not perfect, service the ombudsman expressed the hope that the firm would reflect on the fact that this was all that its client got in the end.