1. This guidance applies whenever a solicitor is, or reasonably ought to be, aware that a client or prospective client (whether having attained the age of legal capacity or not) is or may be vulnerable. Such a client or prospective client is termed a "vulnerable client". "Vulnerable" is used as a convenient comprehensive term, not limited to any definition of that term for any other purpose. "Vulnerability" is used accordingly.
Vulnerability may arise:
(a) where a client lacks or may lack full legal capacity for any juridical act; or
(b) where any juridical act may be affected by undue influence, undue pressure, or any other vitiating factor; or
(c) in relation to any role in any process (as defined in paragraph 2 below); or
(d) in relation to any legal access (as defined in paragraph 2 below); or
(e) in any situation where there is or may be a significant impairment of the client’s ability to express or assert the client’s will or position, or relevant facts, or to assert or protect the client’s integrity, autonomy, interests or welfare (including any such impairment in relation to the solicitor); or
(f) in any situation which can reasonably be expected to cause a client significant stress, anxiety or distress; or
(g) in particular, in any situation where a client’s ability to give instructions may be impaired.
The client should be regarded as vulnerable for the purposes of this guidance whether or not such vulnerability can be effectively counterbalanced, or at least mitigated, by provision of support or other measures. The definitions in paragraphs 2 and 3 below apply to this paragraph 1, and throughout this guidance.
2. Throughout this guidance, the definitions of “vulnerable client”, “vulnerable” and “vulnerability” in paragraph 1 above apply.
• "Appointee" means someone to be appointed in a fiduciary role, such as an attorney, executor or trustee.
• "Client" includes a prospective client.
• “CRPD” means the UN Convention on the Rights of Persons with Disabilities (on the status of CRPD, see paragraph 6 below).
• "Donee" means someone likely to benefit personally.
• “ECHR” means the European Convention on Human Rights (on the status of ECHR, see paragraph 6 below).
• "Initiator" refers to a person other than the client who initiates any proposed engagement, instructions or process to which it is contemplated that the client will be a party.
• “Juridical act” means any act or transaction having, or potentially having, legal effect.
• “Legal access” means access to justice or to legal services, to the same extent as others, in any way.
• "Other vitiating factor" includes facility and circumvention; force, fear or fraud; and misrepresentation; or that an apparent juridical act does not reflect the competent, informed intention and decision of the person in question.
• “Process” refers to any role in any litigation or process of any legal, or potentially legal, significance.
3. The following definitions and provisions also apply throughout this guidance:
• "Rule" and "Rules" refer to the Law Society of Scotland Practice Rules 2011.
• "Must" refers to a binding obligation under statute, regulations, Rules or the like.
• "Should" refers to good practice: failure to comply may be taken into account in disciplinary or other proceedings.
Where a solicitor considers that particular circumstances justify departure from this guidance, a written record of those circumstances and the reasons for the departure should be kept.
4. This guidance seeks to address vulnerability generally. It is not the purpose of guidance to state or interpret the law, and it should not be read as seeking to do so.
5. Note that ECHR and CRPD are referred to where they are relevant for the purpose of providing guidance as to appropriate practice, without addressing questions of law as to upon whom duties with reference to ECHR are imposed; and on the basis that relevant provisions of CRPD are persuasive but not binding in law. This guidance has been issued while the Scott Review is underway. It is expected that the Scott Review will take account of the provisions of ECHR and CRPD, and that future legislation may enshrine some equivalent requirements in law. Practitioners should keep abreast of any such developments, which will not necessarily result in immediate updating of this guidance.
Capacity and Incapacity; Supporting the Exercise of Legal Capacity
6. Vulnerability within the scope of this guidance may arise in situations where questions of capacity or incapacity are not an issue. Conversely, however, such questions will almost always be indicators of vulnerability. Relevant obligations upon a solicitor include (a) to offer support to the client towards enabling the client to exercise legal capacity (paragraph 8 below), (b) to assess the client’s capabilities in relation to the matters about which the client has consulted the solicitor (paragraphs 9 and 10 below), and (c) to assess the quality of a client’s instructions, and whether the solicitor should or should not accept engagement and/or act in accordance with those instructions (paragraph 11 below). Solicitors will often require to combine implementing the positive obligation to facilitate valid and competent juridical acts with the obligation to identify where proposed juridical acts may be incompetent, void or voidable.
7. Solicitors should as far as reasonably practicable assist vulnerable clients to express their wishes, understand relevant advice, give instructions, and carry through valid juridical acts. Where appropriate, solicitors should take advice as to the optimum place, time and other arrangements for advising and taking instructions. A person confused by a lengthy or complex document, or unable to sustain the concentration necessary to understand it, may be able to understand (and, if so desired, validly execute) a simple and straightforward document which is nevertheless adequate for its intended purpose. Solicitors must communicate effectively with their clients; therefore if a client is capable of understanding, a solicitor must communicate by whatever means is necessary to enable the client to understand. In some cases, writing on a pad may assist. In other cases, where language skills are an issue, use of, for example, Google Translate during the course of an interview may be helpful. In situations such as the aftermath of a stroke, a client’s comprehension may be substantially unimpaired, but the client may be able to communicate only by signalling “yes” or “no” responses. In such situations, interviews should be conducted entirely by asking questions requiring “yes” or “no” answers, though help may be gained from the enthusiasm of positive answers (“yes, you are getting there!”), or frustration accompanying negative answers (“no, you are going in the wrong direction”). Such clients may also use other gestures to assist in conveying meaning. It is necessary to be alert to the risk that clients with eyesight or dyslexia issues may mis-read, or mis-communicate in writing. Assistance with communication provided by third parties is addressed in paragraph 15 below.
8. The definition of incapacity in the Adults with Incapacity (Scotland) Act 2000 ("2000 Act") applies for the purposes of that Act, but it may reasonably be referred to for guidance in determining capacity for other purposes. Note that the definition includes "incapable of acting", which may include acting to resist undue influence or other vitiating factors, or acting so as to adhere to and implement otherwise valid decisions, or to maintain consistency.
When considering issues relating to questions of capacity a solicitor should refer to the terms of the Society’s Capacity Generally guidance. As is noted within that guidance Solicitors cannot simply rely upon the legal presumption of capacity, but must take reasonable steps to facilitate the exercise of capacity, including in the matter of instructing a solicitor.
9. In cases of doubt as to the extent to which, and circumstances in which, capacity can be exercised, or conversely as to the extent to which incapacity, undue influence, undue pressure, or any other vitiating factor may adversely affect the validity of a contemplated juridical act, the solicitor should seek the consent of the client to obtain advice in accordance with this paragraph. Subject to such consent, the advice of a medical practitioner, psychologist or other relevant person should be sought. It may be necessary to approach someone with particular specialist expertise.
The solicitor should not seek a generalised and simplistic verdict of "capable" or "incapable". The solicitor should explain the act or transaction contemplated and the legal requirements for it to be valid. The solicitor should explain any indications of relevant capacity or incapacity, or other vulnerability, of which the solicitor is aware, and any steps which the solicitor proposes to take or recommends in order to facilitate exercise of capacity. Where such advice has not been received in writing, the solicitor should send the solicitor’s understanding of the advice received in writing to the relevant adviser, for correction or expansion if need be. All such written communications should be retained.
The solicitor should seek and, if given, record the consent of the client to disclosure at any time, including posthumously, of all or any information, expressly including any that may be privileged or subject to professional confidentiality, that might be relevant to assessment of the validity of any juridical act, or of any responsibility or liability attaching to the client.
10. Questions of capacity must be assessed specifically in relation to a particular action or juridical act. Where several proposed actions or juridical acts are linked, assessment may be necessary for each, and the tests may be different for each. For example, the client may be able to grant a valid Power of Attorney though not capable of all the actings authorised by it. The threshold for validly engaging a solicitor will normally require no more than a basic understanding of what legal advice is, and that it will require to be paid for either privately or by the Legal Aid Fund, coupled with at least simple indicators that the client wishes the solicitor to advise and/or act.
Having accepted an engagement, the solicitor should normally act in accordance with the client’s instructions unless (a) despite implementing this guidance so far as relevant, the client’s purported instructions remain incomprehensible or constantly inconsistent, or (b) the client’s instructions appear to be significantly unwise and the solicitor is not satisfied that the client understands the solicitor’s advice as to significant potential adverse consequences, or (c) the juridical act which the client seeks to instruct would undoubtedly be invalid. Where there are significant doubts about validity (short of undoubted invalidity), the solicitor should clearly warn, preferably in writing, the client that the instructed act could be held to be invalid, but if the client persists in those instructions the solicitor should normally implement them, but retain a full record of the advice given and the reasons for giving it.
If a solicitor does come to the view that they are unable to accept instructions from a client (either initial instructions or instructions during the course of a matter) then the solicitor would require to decline to act or withdraw from acting. In those circumstances solicitors are reminded that their duty of confidentiality persists.
11. The possibility of vulnerability should be considered whenever a solicitor is consulted or instructed in any matter. Often the solicitor will be able to decide quickly and confidently that there is no question of vulnerability; but solicitors should always be alert to any indications of possible vulnerability. The nature and degree of potential vulnerability may vary greatly. One individual may be obviously vulnerable in many situations. At the other extreme, another individual who would not normally be regarded as vulnerable in any situation, may have been rendered to some extent vulnerable by particular circumstances, such as encountering circumstances perceived as significantly threatening to that individual’s interests or welfare. Vulnerability may cause a client to over-react, for example with undue anger, unwillingness to compromise, or unwillingness to accept advice. Vulnerability may also cause a client to under-react, for example by passively or fatalistically accepting situations or assertions that should reasonably be contested. A solicitor may be able to help a vulnerable client to deal with such issues, but where addressing such issues is beyond the reasonable professional skills of a solicitor, the client should be recommended to seek appropriate skilled support or advice.
12. Indications of possible vulnerability may arise from the normal process of ascertaining a client's wishes and intentions, exploring circumstances, and advising as to merits, risks, advantages and disadvantages of a proposed juridical act, or of alternatives, or advising as to any process or any matter requiring legal access. However, on the one hand an apparently unwise act or decision may represent a client's valid and competent choice; while conversely an apparently wise act or decision could be invalid through lack of relevant capacity, or undue influence, or other vitiating factors.
Influence and undue influence
13. Influence, even powerful influence, is not necessarily undue influence. A client may attend to make a Will or grant a Power of Attorney only because someone has strongly influenced them that they ought to do so. Influence may be powerful but benign. Or it may be subtle, but undue. Influence to make a Will, but not as to who should benefit or who should be appointed executor, or to grant a Power of Attorney, but not as to whom to appoint, is unlikely to be undue. If however (in those examples) influence seeks to affect choice of beneficiaries, executor(s) or attorney(s), it is likely to be undue, particularly where the influencer or someone connected to the influencer so benefits, though the extent of realistic (or sensible) choice in the matter may also be relevant. The solicitor should use reasonable endeavours to ascertain such matters from the client.
14. While a solicitor must not act in accordance with purported instructions which the client does not have capacity to give validly, there is no equivalent direct prohibition where the solicitor detects undue influence or other vitiating factors. Where a solicitor believes that a purported act or transaction will be voidable on grounds of undue influence or other vitiating factors, the solicitor may decline to act in accordance with such instructions, but is not bound to do so unless the solicitor reasonably considers that to facilitate the act or transaction would put the solicitor in breach of the requirement of Rule B1.4.1 to act in the best interests of the client. If the solicitor declines, the solicitor should explain the reasons. If the solicitor acts, the solicitor should warn the client that the purported act or transaction may be voidable and (if such be the case) may prove to be contrary to the client's interests. The solicitor should also obtain the client's authorisation to disclose such advice and the reasons for it, should the validity of the act or transaction be put in issue following impairment of capacity or death of the client.
15. A dominated client may deny or conceal undue influence. Where there is a possibility of vulnerability, the client should be seen alone except where the client reasonably prefers someone to give support, or to assist communication, in which case such third party should if at all possible be neutral in relation to the matter in hand. Undue influence can be exercised regardless of presence, though the effect may be greater if the influencer is present, or present elsewhere in the building, or is the initiator, or brings the client and then leaves.
16. A client who is subject to two different spheres of influence may express different, or even contradictory, wishes or make contradictory purported decisions when the client perceives himself (or herself) to be within each of those spheres of influence. This is a clear indication of incapacity to resist influence. However, while inability to resist influence may indicate incapacity, the concepts of undue influence and other vitiating factors are of course not dependent upon incapacity and may apply in cases where capacity is not impaired.
Who is the Client?
17. The granter of a Power of Attorney, Will, guarantee, a document (including a Deed of Trust) incorporating a gift, or other document is the solicitor's client. If there is doubt as to capacity to instruct, that should be resolved before accepting engagement if a new client, or before accepting instructions from an existing client.
18. Where a solicitor issues any document for signature to a party or prospective party "to a transaction of any kind" the solicitor should consider Rule B2.1.7. "Issue" means issuing in any way, including giving the document to the client or other third party to take to the proposed signatory. In the case of continuing and/or welfare Powers of Attorney, Wills and gratuitous documents, these should only be prepared by a solicitor acting for the granter or donor.
A solicitor may occasionally prepare a Power of Attorney for commercial purposes, which is not a continuing or welfare Power of Attorney, or include such power in a longer document, when not acting for the proposed granter. Even in that situation, the solicitor should carefully consider whether he or she can properly proceed if the proposed granter is not separately represented. In any event, the solicitor should consider Rule B2.1.7. Similar considerations may apply in relation to other documents, such as guarantees.
19. Proposed appointees under the Adults with Incapacity (Scotland) Act 2000 should be referred to relevant Codes of Practice and other material available on the Public Guardian's website, as may be appropriate. Acting in the client’s best interests includes taking reasonable steps to ensure that appointees understand, feel able to exercise, and are making informed decisions to accept, the responsibilities that they are undertaking. It will clearly not be in the granter’s best interests to proceed with an appointment (whether as original or substitute attorney) where there is a significant foreseeable risk that the appointee might decline or resign through lack of previous understanding of the realities of the role. That however does not extend to possible changes in the appointee’s capabilities or circumstances in the due course of time
Support and balance
20. Relevant human rights documents, in particular CRPD, emphasise the right of all people with disabilities to receive the necessary support for full exercise of their legal capacity (Article 12.3), subject to safeguards (Article 12.4). CRPD also asserts their entitlement to all relevant human rights “on the same basis as others”. These rights include, generally speaking, all rights in relation to juridical acts, process and legal access. By extension, these requirements can equally be applied to all vulnerable persons, whether vulnerability results from disability or otherwise. Recommendations from Council of Europe assert rights to autonomy and self-determination. Translated to day-to-day solicitors’ practice, good practice requires providing, facilitating or at least recommending all practicable measures to facilitate or enhance the exercise of legal capacity by vulnerable persons, subject to necessary protections.
21. On occasions the balance between facilitation, on the one hand, and declining to act or to follow particular instructions for protective reasons on the other, can be a fine one. The balance can involve, for example, judgements about whether, even with appropriate support, a person has adequate capacity to instruct a particular juridical act; or a judgement about whether provision of support has strayed into inappropriate undue influence. Solicitors should not abdicate responsibility for confronting and addressing such issues, unless they refer or defer to a colleague who might be more suitable in the particular circumstances.
Where a balanced judgement has been made, solicitors should not adhere dogmatically to it, but should have in mind the possibility of a need to re-assess, whether in the light of changed circumstances, more available information, or simply re-appraisal; and to make such adjustments as might be feasible in consequence of such re-assessment. Where such balanced judgements are required, solicitors should make and keep a written record of the issues that they addressed; enquiries made and advice obtained; and the reasons for judgements made. In any situation where a solicitor requires to expend time to provide support (or ensure or recommend its provision) and/or to make such assessments, the solicitor is not required to spend significant time unremunerated, but should resist any avoidable limitations sought to be placed upon a solicitor’s ability to act properly and provide adequate professional services (see paragraph 25 below).
22. In order to provide an adequate service to a vulnerable client, a solicitor may require to spend longer with the client and/or meet the client more often, and over a longer period, than would be considered necessary when acting or advising in a similar matter for a client who is not significantly vulnerable. Where the client is paying, that should be taken into account in issuing and revising cost estimates. Where a third party, including the Scottish Legal Aid Board, has responsibility for costs, the solicitor should resist any pressure on economic grounds that would result in failure to give adequate services to a vulnerable client, or ceasing to act for the vulnerable client, in contravention of professional requirements to give an adequate service, to act in the best interests of the client, and not to cease acting unreasonably. All of these requirements are meaningless unless focused upon the circumstances, capabilities and needs of each individual client.
Representation of a Vulnerable Person in Proceedings
23. Special considerations apply to the right of all persons, regardless of disabilities or vulnerabilities, to independent representation in proceedings of any nature affecting the rights, interests, welfare or other matters personal to that person. Compliance with Article 6 of ECHR may require such representation. If the person’s will, views, or relevant concerns can by any means be conveyed to the solicitor to a sufficient extent to enable the solicitor to present them to the court or tribunal in question, and to advocate in support of them, then other aspects of deemed capacity to instruct the solicitor are irrelevant. It is the solicitor’s responsibility to be satisfied as to the ability of their client to instruct them. Attempts by any organisation or party to interfere with the person’s right to representation and related rights, such as entitlement to Legal Aid, access to data or material, and access to court or tribunal documents and the court or tribunal itself, are improper and must be resisted by the solicitor. All that is necessary is that the solicitor be satisfied that the person wishes the solicitor to act as the person’s client in representing the person’s position, and by any means has sufficient information as to the person’s position and instructions to represent the person. Questions as to whether the court or tribunal has grounds to consider overriding the person’s expressed will and preferences are matters for the court or tribunal to determine, in accordance with law and relevant human rights requirements, which the court or tribunal can only properly do if the person’s will and preferences in the matter have been adequately and independently presented to the court or tribunal by a person with the professional competence to do that. These matters are fundamental to the duties of a solicitor to the client, to the court or tribunal, and to society.
Last reviewed: 20.05.2022