Question of ethics
Q We are acting in a conveyancing transaction for an elderly lady who is now living in a care home.
Her daughter has approached the firm as her mother has become incapable and she wishes to be appointed receiver so that she can deal with her mother's affairs.
Who should bear the costs involved in making an application to the Court of Protection, the mother or the daughter?
A The case of Yonge v Toynbee [1910] 1 KB 215, decided that a solicitor's retainer came to an end when a client lost capacity.
However, the Court of Protection is of the view that solicitors are entitled to consider themselves as acting for the patient and not the person who has given them instructions from the time that an application which is in order is received by the court.
In these circumstances, where the patient is considered to be the client, the patient should bear the solicitor's costs.
The solicitor should make it clear to the instructing party that the client will be the patient and that he will have a duty of confidentiality to the patient, even though the instructions were received from someone else.
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 expired on 31 December 2002.
This statement must now appear on all letterheads and fax headings in accordance with the Solicitors' Publicity Code 2001.
Telephone hotline
The professional ethics lines are open for general enquiries between 11am and 1pm and 2pm and 4pm.
Note that the lines are less busy in the afternoon.
It takes emergency calls outside these hours, tel: 0870 606 2577; 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
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