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Full capacity: should you take instructions from client?

Litigators should be attuned to capacity issues before taking or proceedings with client instructions, warns Hannah Mantle

7 March 2019

With increasing awareness of mental health issues, and increasing numbers of people living with conditions such as dementia, we will all be faced with friends, relatives and clients for whom the question of mental capacity will arise.

Capacity issues can be tricky to navigate when they do arise, as every case is different. Capacity moves along a scale, sometimes abruptly, sometimes gradually; and sometimes it recovers.

This can happen over the course of your instruction, or from day to day. We all have a client who becomes too busy to concentrate on their instructions to you, or who breaks down at mediation or at court. Perhaps more unusual would be a client who has suffered a head injury or develops dementia while you are instructed.

But which of these clients has capacity to instruct us and which does not? What follows are a few points to be borne in mind by practitioners encountering questions of mental capacity on a more indirect basis.

Understand...

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