In Court of Protection matters, problems may arise for solicitors in knowing for whom they act.In Re EG 1 [1914] ChD 927, it was established that where a receiver has been appointed, the solicitor acting in the matter is acting for the patient and not for the receiver.

The decision leaves undecided the question of who is the patient's solicitor in cases where more than one solicitor has been instructed to make an application for receivership or where a patient himself wishes to instruct another solicitor for a particular area of his affairs; for example, where he remains of testamentary capacity and wishes to instruct a different solicitor to draw up a will for him.

Where more than one solicitor has been instructed, perhaps by different members of the patient's family, this places the solicitors in a position of uncertainty as to who is acting for the patient on the principle of Re EG.A further difficulty may arise as a result of Yonge v Toynbee [1901] 1 KB 215, which decided that the retainer of a solicitor came to an end when the patient lost capacity (as an extension of the general rule that, except in the case of an enduring power of attorney, the mental incapacity of the principal revokes any agency).

Nevertheless, incapacitated people may need solicitors to act for them and them alone.Assuming that a patient or donor is within the jurisdiction of the Court of Protection, the solicitor's authority to act for him can be expressly confirmed by the Court of Protection.

Solicitors are also entitled to look upon themselves as acting for a patient or donor and not for the person who has given them instructions (if that is not the patient or donor) from the time that an application which is in order is received by the Court of Protection or the Public Trust Office.

This may, for example, be an application for the appointment of a receiver, for an order determining proceedings, for confirmation of the revocation of an enduring power of attorney or for some other relief or authorisation.

Where two or more solicitors have been instructed (expressly or by implication) to act for the same patient or donor, preliminary directions should be sought from the court as to who will be deemed to be the solicitor in the matter.A solicitor instructed by an applicant for receivership (or by an attorney) will be treated by the court as the patient's (or donor's) solicitor until an objection to the application, or a competing application, is received by the court.

A soon as this happens, the solicitor instructed by the first applicant must elect whether to continue representing the patient or to represent the first applicant.

If the solicitor elects to represent the first applicant, then it is for the court to decide whether the patient needs separate representation and, if so, to instruct a different private solicitor or the official solicitor (if he agrees) to act for him.

If the solicitor elects to remain as the patient's solicitor, then the first applicant will have to instruct another firm.Solicitors will no doubt wish to make clear to the person from whom they take initial instructions that their clients will be the patient or dono r and that the solicitors will have a duty of confidentiality to the patient or donor, even if the instructions come from somebody else.The court would like applicants and solicitors to be aware that if a reference which is received by the court in respect of an applicant is not satisfactory, no further enquiry will be made as to the applicant's suitability but the applicant will not be appointed as receiver.

This may be considered unfair to the applicant but, in the court's view, the best interests of the patient must come first.