Lost in translation

I was recently speaking to a colleague about taking instructions from a vulnerable client. She asked if I had a list of questions that I went through to determine whether or not a person has capacity. I have a feeling she thought that there might be a nice test we give clients (like the Addenbrookes cognitive examination) with a helpful cut off point in the scoring so we could say; above X means capable, below X means incapable.

Apart from commenting that my job would be a lot more straightforward if there was such a test, I broke the bad news - and got a gig offering some training to her team on mental capacity.

No good deed goes unpunished

One thing that became clear was that not everyone really appreciates the difficulties that simply being less mobile and less energetic bring with them.
In a busy office environment, it is easy to forget that some clients need more support, and that others require more time - not always a 'good thing' when you're charging on an hourly rate.

This made me realise that rather than constantly thinking about what the legal test of capacity is, there needs to be greater thought put into how we can make it easier for an elderly or vulnerable client to instruct us, which is something that should start before your first appointment.

Environment

We spend our lives in corporate surroundings, dealing with the law. Don't forget that for some people lawyers are not just unpopular, but having to go and see one is frightening. We're cold, patronising, expensive and don't care, in the eyes of many.

Unfortunately the nature of the profession also means that we often only get involved when there is a problem.

You can alleviate some of the anxiety by asking your client if they would rather you came to see them, and don't punish them with extra fees for doing so. In their own home, they are likely to be more relaxed and anything that reduces anxiety will make your job easier in the end.

Timing

I'm happy to admit that I'm a morning person, but trying to get my 10 year old son out of bed and to school is a daily reminder that not everyone functions the same way. Ask your client if morning or afternoon is better for them. Consider that after lunch they may be a bit drowsy or, that they may be on medication that impacts on their alertness. This is certainly something you can ask family members if they are the ones getting in touch to arrange an initial appointment.

Communication

This isn't just about the obvious difficulties that crop up when, for example, a client has to use an alphabet board or other assistive device to communicate with you. You need to think about whether a client is able to hear you (is the office noisy? Are you speaking loudly or slowly enough?) or whether they can understand any materials you are giving them. I have noticed that in our desire to develop a corporate identity, law firms don't always consider the accessibility of the documents they are producing.

It is also vital to present concepts and advice in a way that a non-legal professional will understand. Which of these is the clearer sentence?

• In accordance with the particulars provided on commencement, charges will be levied monthly.

• We will send you a bill once a month, as agreed when we started work for you.

And how about terms like, 'testamentary capacity' or 'the ability to make a will', 'contested probate' or 'challenging a will'. All of these terms obviously meaning something to us, but that doesn't mean that they necessarily mean anything to our clients.

This is not intended to be an attempt to teach anyone to suck eggs, it's a reminder that clients can sometimes need more care and attention and that internal training for other departments is very useful. They need to know that there is no magic capacity questionnaire, and that the onus is on us to support our clients in giving us instructions.

Sofia Tayton is a partner and head of care and capacity at Lodders Solicitors

She writes the regular in-practice article on care and capacity for Private Client Adviser