Lawcovernotes October 2013

What to do from a risk management point of view when an elderly client instructs to you do something that you think is unwise? This scenario arises with unfortunate frequency. Do you refuse to act? This may mean leaving the client to find another solicitor thereby transferring the risk to someone else; or leaving the determined client to proceed with no legal advice whatsoever. One of our insureds turned to video technology to grapple with issues of age, competence and imprudence. The client in this case was elderly and had suffered a stroke. He wished to transfer his property to his much younger carer. The transfer was to record a sale price well above the actual price which was set to reflect the amount of a mortgage - about 25% of the property’s true value. The insured assessed the client as competent and provided his advice. The client was determined to proceed, advice notwithstanding. The insured decided that he would accept the instructions on condition the client would agree to being videotaped. He did so and the sale proceeded. Some time later, the client sacked his carer and replaced her with a younger one. He would rather have sold the property to her. He approached the Protective Commissioner with a tale of vulnerability and exploitation and a complaint against his solicitor for not protecting him. The Commissioner made a claim. The tape was provided and the claim ended almost as quickly as it had begun. The moral of the story? - Used judiciously and particularly when there is an issue of competence, taping a client giving instructions with consent can be a prudent risk management tool. Jennifer O’Brien Claims Solicitor Managing the issue of client competence