The Law Society of Ontario has posted a new resource on its website that will be of benefit to all lawyers and of particular concern to estates and trusts practitioners.
Entitled “Guide to navigating client capacity concerns,” the resource considers the responsibility that lawyers have to ensure that their clients have “the capacity to provide legal instructions and enter into binding legal relationships.” It also goes on to state that a lawyer “must consider whether the client is being pressured by a third party to proceed with the matter or provide instructions.”
This latter point is of particular concern to lawyers who draft Wills. The best practice for the drafting solicitor has long been to “probe” for the existence of undue influence. For many years now, the Guide prepared by the British Columbia Law Institute (“BCLI”), and recently updated, has been widely used throughout the legal profession. It only makes sense that the LSO should provide a guide for Ontario Practitioners.
Of particular benefit is a Worksheet entitled “Red Flags of Legal Incapacity, Duress and Undue influence.” Like the BCLI guide, the worksheet provides guidance on key situations that should give a lawyer pause to consider whether a client is incapable, vulnerable, and/or being subjected to undue influence.
Every client interaction should give us pause to consider whether there are any red flags present. If there are, the Guide proposes appropriate follow-up to consider. For example, the Guide suggests that “where appropriate, you may wish to meet with a client in their home to make further observations about a client’s living situation.” A law office is indeed an artificial environment and the extent to which clients may mask the existence of undue influence or vulnerability can be exposed by this insightful suggestion, just one of many in the Guide.
Thanks for reading,