Question of ethics

Q I am concerned that my client may have lost mental capacity.

Can I nonetheless act for the client?

A You cannot act for a client who does not have capacity, but there is a presumption of capacity; and there are different levels of capacity for different activities.

You may well need to obtain a medical opinion.

You will need to have the client's consent to approach the doctor.

It is vital that the doctor understands the relevant test of capacity - you should not assume that is so.

You will have to consider the medical report and make your own assessment.

If you decide that the client lacks the necessary capacity, you should contact the Public Guardianship Office, see Principle 24.04, page 453 of the Guide to the Professional Conduct of Solicitors, Eighth Edition, 1999.

Or, if you were taking instructions from an attorney in exercise of an enduring power of attorney which had been registered, you could continue to act on behalf of the donor of the power.

Be aware

The transitional provision allowing private practitioners in England and Wales to postpone putting 'regulated by the Law Society' on certain items of stationery expires on 31 December.

From 1 January 2003 this statement must appear on all letterheads and fax headings in accordance with the Solicitors' Publicity Code 2001.

Please note

The professional ethics lines are open from 11am to 1pm, and from 2pm to 4pm.

Lines are less busy in the afternoon.

We take emergency calls outside these hours, tel: 0870 606 2577.

Contact the Professional Ethics Division, Ipsley Court, Berrington Close, Redditch, Worcestershire, B98 0TD, DX 19114 Redditch, fax: 020 7320 5897.

Question of ethics is compiled by the Law Society's professional ethics guidance team.

Send questions for publication to Austin O'Malley, the Law Society, Ipsley Court, Berrington Close, Redditch B98 0TD; DX 19114 Redditch.