New Zealand Law Society - Lawyers Complaints Service: More inquiries needed by lawyer before acting for person with dementia

Lawyers Complaints Service: More inquiries needed by lawyer before acting for person with dementia

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A lawyer, W, had been engaged to assist an 84-year-old woman, Mrs D, to revoke an existing enduring power of attorney (EPA) and to prepare a new one. Mrs D had Alzheimer’s Disease, but after spending time with her, W decided she appeared to be lucid, and he would accept the instructions. He drafted and sent her a new EPA.

A lawyers standards committee has found this to be unsatisfactory conduct, and fined W $3,000. W refused to accept he may have made an error.

Mrs D had previously executed a power of attorney in favour of her daughter. Mrs D had recently made friends with a Ms F, whom the daughter believed was extracting money from her mother. Because of this there was a trespass notice and police warning against Ms F.

Mrs D, however, decided she wanted to revoke the existing EPA in favour of her daughter, and to issue a new one in favour of Ms F, because she believed her daughter had frozen her bank accounts, taken her car, and was going through her mail. She was referred by a social agency to W, and she asked him to act for her.

W spent 50 minutes with Mrs D, and listened to her carefully. Mrs D provided him with a letter from her doctor, and he asked Mrs D about the contents of the letter. The letter said she had dementia, with a declining ability to care for herself, and she was “prone to drawing unsupported conclusions”.

W formed the opinion however that Mrs D was lucid and competent, and had capacity to revoke the previous EPA and to execute a new one. He said that Mrs D’s answers to his questions were very clear, considered, and showed no evidence of disordered or illogical thinking. He accepted her statements that her daughter was abusing the existing EPA.

As a result he drafted the revocation and new EPA, and posted the documents to Mrs D.

An hour after he posted it, W received an email from a law firm who were Mrs D and her daughter’s lawyers. The email, which had medical reports attached, confirmed Mrs D was diagnosed with Alzheimer’s, and she did not have capacity to revoke the EPA. It added that her condition had deteriorated several months before.

W said he accepted this email did place a different cast on the matter, and immediately posted Mrs D a copy of the email, asking that he contact her with instructions. She did not do so.

The new EPA came to light when it was given to Mrs D’s bank, although the bank refused to act on it. The daughter complained to the Law Society.

The standards committee said that though W had received some information about Mrs D’s mental condition after he had prepared the documentation, he had received enough before it to raise obvious concerns about Mrs D’s mental capacity.

The committee considered this should have at least made him consider making further enquiries before carrying out the instructions.

The committee said W’s actions were negligent, but not dishonest. However he refused to accept that he made a mistake, or to apologise. As well as fining W, the committee censured him, ordered him to pay $500 to the daughter for her costs, and ordered him to pay the Law Society $1,000 costs.

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