Mr Anderson prepared and executed a will and enduring powers of attorney for the client based on his own assessment of her competence despite having access to information that raised significant concerns about her capacity including a medical report diagnosing dementia. At the time the documents were prepared, there was an application in respect of the client under the Protection of Personal and Property Rights 1988. Mr Anderson accepted instructions to act for the client’s brother (who was the primary beneficiary under the estate planning documents) in those proceedings despite the conflict of interest and the likelihood that he would be required to give evidence on the issue of capacity.  

In terms of liability, Mr Anderson admitted the charge of negligence or incompetence in his professional capacity which was of such a degree or so frequent as to reflect on his fitness to practise or bring his profession into disrepute. The Tribunal found that he ignored several red flags in respect of his client’s capacity: the client was 91 years old and residing in a dementia unit, the medical report, that the person who conveyed the “instructions” was to benefit from the outcome, and the application to the Family Court. The Tribunal found that no competent and diligent lawyer would have proceeded as Mr Anderson did in those circumstances. The Tribunal noted that the elderly client died and her estate has been put to expense due to Mr Anderson’s incompetence.  

In determining a penalty, the Tribunal assessed Mr Anderson’s conduct as “relatively serious negligence”.  It noted that Mr Anderson admitted the charge early and took remedial action including educating himself. He also entered a supervisory arrangement with a principal of another firm. The Tribunal censured Mr Anderson and ordered him to pay a fine of $9,000 and costs. The supervisory arrangement was ordered to continue until 15 May 2027 (lasting a total of12 months). In addition, Mr Anderson agreed to pay compensation to the client’s estate of $25,000 for legal fees relating to estate matters. The Tribunal acknowledged that the costs that would be incurred was unknown so the compensation would be held in a trust account and payments made only with the approval of the Tribunal.