Introduction

This course is aimed at legal practitioners (including paralegals and trainee solicitors, or equivalent) who are inexperienced in applying the Mental Capacity Act 2005 in the assessment of capacity in their day-to-day practice. It is relevant for all areas of legal practice. The course will cover the statutory framework under the Mental Capacity Act 2005 and accompanying Code of Practice, the SRA’s Code of Conduct for Solicitors, the Court of Protection Rules 2017, practice directions and case law. It will also introduce more complex capacity assessments and consider wider vulnerability factors.

Current awareness

Legal practitioners must be satisfied that their client has capacity to give proper instructions. This obligation is supported by case law and the SRA’s Code of Conduct for Solicitors, including Rule 3.1 which states “you only act for clients on instructions from the client, or from someone properly authorised to provide instructions on their behalf. If you have reason to suspect that the instructions do not represent your client’s wishes, you do not act unless you have satisfied yourself that they do”. Failure to follow professional obligations may have negative consequences for the practitioner and their firm.

The Mental Capacity Act 2005 introduced a statutory test of capacity, which is supported by common law tests of capacity, and this applies to all areas of legal practice.

What attendees will learn

The course will cover the following:

• The professional obligations of legal practitioners in assessing their client’s capacity to give instructions
• Introduction to the Mental Capacity Act 2005 and the statutory principles
• Assessing capacity including remote assessments
• Supported decision making
• Best interest decision making
• Specific capacity assessments, including in relation to:

1. Capacity to make a lasting power of attorney
2. Capacity to manage property and affairs
3. Capacity to litigate
4. Capacity to gift
5. Capacity to engage in social media

• What to do if your client lacks capacity
• Meeting the needs of vulnerable clients

-----------

Holly Chantler, Partner and Head of Private Client, Morrisons Solicitors

Holly is a Partner and Head of the Private Client department at Morrisons Solicitors. She deals with all manner of Private Client work, including administration of trusts and estates, Wills, declarations of trust and tax matters. She is a member of Solicitors for the Elderly, and regularly advises such clients regarding estate planning and long-term care planning. Her particular area of expertise is older and vulnerable adults, dealing with complex issues relating to mental capacity, financial abuse, powers of attorney, advance decisions and Court of Protection applications – including those appointing deputies and trustees over land. In addition, Holly is a practising notary and deals with a wide range of multi-jurisdictional issues.

Holly is a panel deputy for the Office of the Public Guardian and the Court of Protection and a director of the national organisation, Solicitors for the Elderly (SFE). Holly is also a registered STEP Trust and Estate Practitioner and a full member of STEP.

Holly was named one of ePrivateclient’s Top 35 under 35 practitioners in 2015 and 2016. This list is considered to be the definitive list of young private client practitioners and the market leading guide to rising stars and the next generation of leaders in the Private Client sector in the UK. She is also named in Chambers and Legal 500, with particular recognition for her work with older and vulnerable adults, and won the SLS Legal Award for Private Client Lawyer of the Year in 2018 and 2019.

Holly featured on BBC Radio 4's Money Box programme and co-authored the Elderly Client Handbook (6th Edition)