Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2015
  4. Legal Services Commissioner v Given - [2015] QCAT 225

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Legal Services Commissioner v Given[2015] QCAT 225

Legal Services Commissioner v Given[2015] QCAT 225

itional.dtd">

CITATION:

Legal Services Commissioner v Given [2015] QCAT 225

PARTIES:

Legal Services Commissioner

(Applicant/Appellant)

v

Ross Alexander Given

(Respondent)

APPLICATION NUMBER:

OCR030-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

5 September 2014

HEARD AT:

Brisbane

DECISION OF:

Justice David Thomas, President

Assisted by:

Mr Ken Horsley (Practitioner Panel Member)

Dr Julian Lamont (Lay Panel Member)

DELIVERED ON:

12 June 2015

DELIVERED AT:

Brisbane

ORDER MADE:

  1. The Respondent be publicly reprimanded.
  2. A penalty in the sum of $1,500.00 be imposed.
  3. The Respondent is to pay the Applicant’s costs assessed on the Supreme Court Scale.
  4. The claimant, Ms Elizabeth Bywater, is to file four copies in the Tribunal and serve one copy upon the Respondent of any evidence and submissions upon which she intends to rely in making a claim for compensation pursuant to the provisions of the Legal Profession Act 2007 by 4.00pm on 3 July 2015.
  5. The Respondent is to file four copies in the Tribunal and serve one copy upon the claimant, Ms Elizabeth Bywater, of all evidence and submissions upon which the Respondent intends to rely in relation to the claim for compensation by 4.00pm on 31 July 2015.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – DUTIES AND LIABILITIES – SOLICITOR AND CLIENT – DEALING WITH CLIENT - where respondent faces 3 charges for failure to maintain reasonable standards of competence and diligence in preparation and execution of an enduring power of attorney and two wills – where alleged that the respondent was or should have been aware that the client may not have capacity to execute the power of attorney and the wills – where elderly client had suffered a stroke and had speech difficulties – where respondent failed to take adequate notes of interview with the client – where respondent met with client in presence of relative –  where respondent failed to seek any medical opinion or information verifying the client’s capacity – whether respondent failed to conduct appropriate enquiries to satisfy himself that the client understood the nature and effect of an enduring power of attorney and will –whether unsatisfactory professional conduct or misconduct

Legal Profession Act 2007 (Qld) ss 418, 419, 452, 456(4)(b), 462(1), 465

Powers of Attorney Act 1998 (Qld) s 41

Easter v Griffith & Ors (1995) 217 ALR 284

Legal Services Commissioner v Bone [2013] QCAT 550

Legal Services Commissioner v Comino [2011] QCAT 387

Legal Services Commissioner v De Brenni [2011] QCAT 340

Legal Services Commissioner v Ford [2008] LPT 12

Legal Services Commissioner v McLelland [2006] LPT 13

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr David Kent QC instructed by the Legal Services Commissioner

RESPONDENT:

Mr James Bell QC with T Pincus

REASONS FOR DECISION

The charges

  1. [1]
    Three charges are brought by the Legal Services Commissioner against Mr Ross Given under s 452 of the Legal Profession Act 2007 (Qld) (the Act). It is alleged that Mr Given was involved in conduct which constituted professional misconduct and/or unsatisfactory professional conduct in that:

Charge 1:On 20 March 2009 Mr Given failed to maintain reasonable standards of competence and diligence in relation to the preparation and execution of an enduring power of attorney for his client, Mr Robert Bywater.

Charge 2:On 20 March 2009 Mr Given failed to maintain reasonable standards of competence and diligence in relation to the preparation and execution of a will for Mr Bywater.

Charge 3:On 7 May 2009 Mr Given failed to maintain reasonable standards of competence and diligence in relation to the preparation and execution of a will for Mr Bywater.

  1. [2]
    With respect to each of those charges, a specific issue raised is that, when taking instructions, Mr Given “was or should have been aware that the client may not have sufficient capacity to execute the relevant document” (being an enduring power of attorney for charge 1, a will for charge 2 and a will for charge 3).[1]
  2. [3]
    As to that issue, the Legal Services Commissioner submits that the circumstances which should have alerted Mr Given with respect to the capacity issues included:
    1. The client was 76 years old at the date of the attendance (charges 1, 2 and 3);
    2. The client had, only on 14 March 2009, come into the care of his sister, Ms Winifred Bywater (charges 1 and 2);
    3. The request for the attendance was not made, and the instructions were not provided to Mr Given by the client but by Ms Winifred Bywater (charges 1, 2 and 3);
    4. The attorney for the first power of attorney, the client’s wife, Ms Elizabeth Bywater, was not present, and had not been consulted (charge 1);
    5. The client had difficulties with his speech and writing as a result of having suffered a stroke in the past (charges 1, 2 and 3);
    6. The client took a much longer time than a person of good health of his age would take to respond to questioning (charges 1 and 2);
    7. Ms Winifred Bywater was present with Mr Given and the client at the attendance (charges 1, 2 and 3);
    8. Ms Winifred Bywater was to be appointed as attorney under the new power of attorney, and to be appointed executor under the new will, and that further, under the new will, Winifred’s children were to become beneficiaries of the client’s estate (charges 1, 2 and 3);
    9. Mr Given had no information and medical evidence about the client’s condition, nor had he sought any information or medical evidence (charges 1, 2 and 3).
  3. [4]
    As to charge 3, the Legal Services Commissioner submits that additional circumstances which should have alerted Mr Given with respect to the capacity issues included:
    1. a new power of attorney had been executed appointing Ms Winifred Bywater as the client’s attorney on 20 March 2009;
    2. a new will had been executed appointing Ms Winifred Bywater as the client’s executor and Ms Winifred Bywater’s children as beneficiaries under that will on 20 March 2009;
    3. the will of 20 March 2009 was to be amended eliminating all dispositions to the client’s wife, Ms Elizabeth Bywater;
    4. the client still resided with Ms Winifred Bywater.
  4. [5]
    The Legal Services Commissioner asserts that, in breach of his duty as a solicitor, Mr Given:
    1. failed to conduct appropriate enquiries to satisfy himself that the client understood the nature and effect of an enduring power of attorney and was capable of executing the said document (charge 1);
    2. failed to conduct appropriate enquiries to satisfy himself that the client understood the nature and effect of the wills and was capable of executing the documents (charges 2 and 3);
    3. failed to seek any medical opinion or information verifying the client’s capacity to sign the enduring power of attorney and the will (charges 1, 2 and 3);
    4. failed to undertake an interview with the client in accordance with the Queensland Office of the Adult Guardian’s “Capacity Guidelines for Witnesses of Enduring Powers of Attorney” (Adult Guardian Guidelines) (charge 1);
    5. permitted the client to sign the enduring power of attorney and the wills, when he knew or ought to have known that doubts may be raised about the client’s capacity to sign the documents (charges 1, 2 and 3);
    6. failed to make any written record of the steps taken in assessing competence, including all questions and answers (charges 1, 2 and 3).

The background

  1. [6]
    On 29 October 1980 the client, Mr Bywater, executed a will appointing his wife, Ms Elizabeth Bywater, as executor of his estate and bequeathing the whole of his estate to her.
  2. [7]
    On 20 March 2006, Mr Bywater executed an enduring power of attorney (“the first power of attorney”) appointing Ms Elizabeth Bywater as his attorney for financial, personal and health matters.
  3. [8]
    The first power of attorney was in force at all material times up to 20March 2009.
  4. [9]
    On 13 March 2009 an Aged Care Assessment Team (known as ACAT) assessment was carried out on Mr Bywater. According to the evidence of Ms Elizabeth Bywater, the assessment indicated that Mr Bywater required a high level of care and a high level of personal attention. The assessment recorded that there were short and long term memory problems.
  5. [10]
    On 14 March 2009, Mr Bywater ceased living with his wife and commenced living with his sister, Ms Winifred Bywater.
  6. [11]
    On 19 March 2009, Ms Winifred Bywater made an appointment for MrBywater and herself to meet with Mr Given to prepare a new power of attorney.
  7. [12]
    On 20 March 2009, Mr Given attended upon Ms Winifred Bywater and MrBywater to prepare and execute the new power of attorney and the new will (“the first new will”).
  8. [13]
    On 7 May 2009, Mr Given attended upon Ms Winifred Bywater and MrBywater for the purposes of the preparation and execution of a new will (“the second new will”).
  9. [14]
    The first new will altered Mr Bywater’s will so that Ms Winifred Bywater’s children were to become beneficiaries of Mr Bywater’s estate.
  10. [15]
    The second new will altered the first new will so that dispositions to MsElizabeth Bywater were eliminated.
  11. [16]
    On 7 May 2009, Mr Given was also instructed by Mr Bywater to communicate with the lawyers for Ms Elizabeth Bywater in relation to the breakdown of their marriage and seeking an amicable resolution of the arising property issues.
  12. [17]
    A letter to that effect was forwarded by Mr Given to Ms Elizabeth Bywater on 11 May 2009, as instructed.
  13. [18]
    On 22 May 2009, Butler McDermott Lawyers, on behalf of Ms Elizabeth Bywater, responded, and asserted that Mr Bywater “does not have capacity and could not have had capacity to execute that power of attorney in favour of his sister, at anytime after 14 March 2009, nor provide [Mr Given] with instructions as to the matters contained in [Mr Given’s] letter”.
  14. [19]
    Following receipt of that letter, Mr Given referred Mr Bywater to Dr Kendall McLelland, a general practitioner who had been treating Mr Bywater at the time.
  15. [20]
    During this time, Mr Given took further instructions from Mr Bywater including preparation of a revocation of power of attorney directed to MsElizabeth Bywater.
  16. [21]
    On 3 June 2009, Butler McDermott Lawyers forwarded a request to DrMcLelland seeking his independent report.
  17. [22]
    Dr McLelland provided a report on 4 June 2009, which concluded:

“The cerebral vascular accident has left a legacy of some physical disability and speech difficulties.

To the best of my clinical knowledge the cerebral vascular incident has not altered his intellectual or his mental capacity to understand the written and spoken word. His comprehension is within his normal limits for his age.”

  1. [23]
    On 1 July 2009, Mr Bywater retained Ms Bulyk to act on his behalf. Ms Bulyk provided an affidavit in these proceedings. Ms Bulyk refers to her instructions from Mr Bywater, and to meetings which took place on 1 July, 7 July and 17 July 2009. Ms Bulyk deposes that she is aware of the various guidelines in relation to preparation and execution of wills and powers of attorney including, in particular, the guideline on powers of attorney issued by Lexon Insurance. She also deposes that she is familiar with s 41 of the Powers of Attorney Act 1998 (Qld).
  2. [24]
    Ms Bulyk concludes:

“…having regard to the Lexon guidelines and the Act, Mr Bywater had the necessary capacity to complete a power of attorney at the time of my meetings with him. I felt confident in his ability to comprehend our discussion and give me instructions. I also had the benefit of citing a medical report from Mr Bywater’s doctor, DrMcLelland dated 4 June 2009, stating Mr Bywater had capacity”.

  1. [25]
    Ms Bulyk indicates that she could not say with any certainty whether she would or would not have referred Mr Bywater to a doctor if he had instructed her in July 2009 to prepare a power of attorney.
  2. [26]
    An application was made to the Guardianship and Administration Tribunal regarding Mr Bywater and was heard on 18 August 2009.[2]
  3. [27]
    The Tribunal received health professional reports from Dr McLelland dated 22 June 2009 and 12 August 2009. According to the order made by the Tribunal, the reports from Dr McLelland were to the effect that Mr Bywater could understand and make both simple and complex decisions relating to his personal healthcare, lifestyle and accommodation choices, as well as his financial affairs.
  4. [28]
    The order of the Tribunal also records that Dr Peita Wilson from Buderim provided a health professional report which the Tribunal received on 20July 2009. Dr Wilson had been Mr Bywater’s doctor from 2004 until 2December 2008. Dr Wilson expressed the opinion that the client was not capable of making decisions clearly after his stroke.
  5. [29]
    Mr Bywater also saw a specialist, Dr Elizabeth Merson, Neuropsychologist, on 27 July 2009. Dr Merson concluded that MrBywater demonstrated quite moderate to severe impairments in all areas of recognition and that he was disorientated in time and place, his short term memory was very poor, he had poor concentration and was significantly cognitively impaired. Dr Merson concluded it was quite likely Mr Bywater was impaired in March 2009 and would have had no capacity for making decisions.
  6. [30]
    The Tribunal preferred Dr Merson’s evidence to that of Dr McLelland, and determined that applications for a declaration of capacity should be dismissed.

Expert evidence

  1. [31]
    Mr Tim Whitney, an accredited specialist in succession law, provided a letter dated 18 September 2013 and also gave evidence at the hearing.
  2. [32]
    Mr Whitney gave his evidence in a frank and forthright way consistent with his role as an expert assisting the Tribunal. The Tribunal concludes that Mr Whitney was a reliable and knowledgeable witness.
  3. [33]
    Mr Whitney was asked by counsel for the respondent to examine all the material and provide a report as to whether, in his opinion, Mr Given’s conduct amounted to a failure to maintain reasonable standards of competence and diligence in taking instructions from Mr Bywater for the preparation, and witnessing, of an enduring power of attorney and the two wills.
  4. [34]
    As to charge 1, Mr Whitney concluded that, with one reservation, he believed Mr Given did maintain reasonable standards of competence and diligence in relation to execution of the enduring power of attorney signed on 20 March 2009. In expressing this conclusion, Mr Whitney records that he does not say Mr Given maintained the best standards or even standards better than reasonable. He identifies deficiencies as including the presence of Ms Winifred Bywater and the inadequacy of the notes maintained by Mr Given, particularly in the circumstances.
  5. [35]
    As to charge 2, Mr Whitney concluded that Mr Given did maintain reasonable standards of competence and diligence.
  6. [36]
    Again, whilst expressing this opinion, Mr Whitney caveats his view, recording he did not believe that Mr Given conducted the matter along best practice principles. Mr Whitney refers again to the presence of Ms Winifred Bywater at the conference, the notes which were made by Mr Given, checking percentages in the will and discussing with the client the opportunity to consult with a medical practitioner.
  7. [37]
    As to charge number 3, Mr Whitney concluded that Mr Given did maintain reasonable standards of competence and diligence, but no more than reasonable standards.
  8. [38]
    As to the particulars of that charge, and specifically those matters which, it is alleged, should have put Mr Given on notice of capacity issues, Mr Whitney concludes that “none are facts which … would have led a practitioner applying reasonable standards of competence and diligence to be aware that the client may not have sufficient capacity.”
  9. [39]
    When asked by Mr Kent QC about note taking, Mr Whitney suggested that in some circumstances it might be impossible, due to the need to communicate directly with the client during the interview, to take extensive notes. However, in those circumstances, Mr Whitney expressed the opinion “you’d do the best job you can with the notes, given the circumstances, then, when you get back to the office dictate an email of what happened whilst it’s still fresh in your memory”.
  10. [40]
    As to whether taking adequate notes was an aspect of a solicitor discharging his professional obligations and whether, in that context, a contemporaneous note would be of assistance if there were a dispute about capacity, Mr Whitney observed “yes it would be. Every step you take in instructions from a client for a will and enduring power of attorney is a cost benefit analysis. What is the cost of taking – dictating the note, checking it, and putting it on the file as opposed to the potential benefit for the client? And again, seeking medical opinion. Is there a reasonable cause to do so? Because it all costs the client money”. Mr Kent QC asked “.. you’re not really suggesting that a diary note dictated shortly after is a huge expense to the client?” Mr Whitney responded, “no I’m not.”            
  11. [41]
    As to the question of consulting with the medical practitioner Mr Whitney observes that, if Mr Given’s evidence were accepted (that Mr Given was satisfied he could rely upon the instructions received), then it is clear Mr Given maintained reasonable standards. If Mr Given’s evidence were not accepted or contrary evidence arose as to issues such as contradictions by Mr Bywater during the conference, lapses of concentration or other indications to alert a reasonable practitioner, then Mr Whitney’s opinion was that instructions should have been sought to obtain a medical opinion. I will turn to Mr Given’s evidence shortly.
  12. [42]
    As to the indicia which might alert a solicitor to capacity issues in circumstances where a stroke caused speaking difficulties, Mr Whitney observed “without more, it wouldn’t raise concerns with me. I could rely on the communications with the client”.
  13. [43]
    When pressed about the stroke and the speech difficulties as being “enough of a red flag that you would turn your mind to other indicators of capacity”, Mr Whitney responded “No, I don’t think so, once I was satisfied that I had a reliable method of communication.”

Evidence from Mr Given

  1. [44]
    Mr Given swore an affidavit in these proceedings and gave evidence at the hearing.
  2. [45]
    Mr Given is a solicitor of the Supreme Court of Queensland and was admitted on 25 July 1978. He retired from practice at the end of August 2010.
  3. [46]
    Mr Given deposes to having prepared many thousands of wills and enduring powers of attorney during his time in practice. He says he was aware of the Adult Guardian Guidelines and also section 41 of the Power of Attorney Act, but did not have the Adult Guardian Guidelines with him at the interviews.
  4. [47]
    He says that this awareness led to his adopting a standardised approach when dealing with clients that complied with the Act’s requirements.
  5. [48]
    Mr Given refers to the fact that Mr Bywater had clearly had a stroke which affected his speech and mobility. He says there was no suggestion, based upon observation, that the stroke had affected his client’s cognitive ability.
  6. [49]
    Mr Given refers to Mr Bywater’s difficulty in speaking and outlines a method of communication which he developed which was satisfactory from his point of view. In those circumstances he recalls that it was “relatively easy to understand what he was saying as long as I paid close attention to his pronunciation.”[3]
  7. [50]
    Because of the communication difficulties, Mr Given said that he spent considerable time establishing, to his satisfaction, that Mr Bywater had capacity (in particular, the Mr Bywater understood what instructions he was giving and their effect), was able to provide independent instructions, and that he properly understood what those instructions were.[4]
  8. [51]
    Mr Given deposes:

“I was aware that the initial contact with my office had been made by Winifred, in other words, a person who is not my client and a relative of the proposed client. I was aware that Mr Bywater had suffered a stroke because he told me so, I was aware that he had difficulty with his mobility because I observed him so, and I was aware of his limitations with communication because I spoke immediately with him. In all those circumstances, I acted with greater than normal care and took considerably longer time in taking instructions. I wanted to be certain that Mr Bywater understood the nature and effect of an enduring power of attorney and that he was making decisions about the matter freely and voluntarily. In other words, I wanted to make sure that he was not the “puppet” of his sister, Winifred who was to be the attorney. I formed the conclusion that none of the potential problems in fact existed for Mr Bywater”.[5]

  1. [52]
    In summary, Mr Given says:

“Mr Bywater had no problems answering any of my questions other than the operational difficulties that he had with speech generally to which I have previously referred. I consider that I was able to obtain full and proper and detailed instructions from him. I did not consider that it was necessary to obtain a professional opinion from a medical practitioner or another professional with expertise in cognitive assessment, because in my opinion there was no doubt that Mr Bywater knew what he wanted, was able to give me instructions as to what he wanted, understood the effect of the documents I prepared for him, and it was my role to put in place what he wanted. In my view he fully understood the nature and effect of his decision making and documents that he was instructing me to create”.[6]

  1. [53]
    As to the role of Ms Winifred Bywater, Mr Given says she provided no more than detail on less substantive matters, and he did not observe anything to suggest that she was attempting to influence Mr Bywater’s decisions as to his power of attorney or wills.[7] Instructions on matters of substance came from Mr Bywater, not from Ms Winifred Bywater.[8]
  2. [54]
    Mr Given deposes to what he describes as his “invariable practice” of seeing a client alone after the will and power of attorney were prepared, to ensure that the contents of the documents reflect the client’s wishes and instructions. He also refers to an invariable practice in the way in which he explained the contents of the will to the client.[9] He has a ‘standard spiel’ that explains the effect of the enduring power of attorney, specifically reading out matters set out in Part 8 of the standard form enduring power of attorney (headed ‘Statement of Understanding’), before seeking confirmation of the client’s understanding of what was being executed.[10]
  3. [55]
    Mr Given says Mr Bywater communicated clearly that he understood the document and it reflected what he required.[11]
  4. [56]
    Mr Given accepted that his handwritten notes were not adequate. He said that he would obtain a general outline of instructions and would then use his dictaphone in the presence of the client to prepare the relevant document. His view was that the client could hear everything he was saying and would make corrections as required. He “found this to be a very accurate and efficient way of acting in these matters” and that “this meant that I relied heavily on the dictaphone and less on notes”.[12]
  5. [57]
    In relation to the preparation of the first new will, Mr Given recalled some specific discussions about the way in which Mr Bywater was proposing to deal with his estate, and also his feelings towards his illegitimate son, Craig and granddaughter, Madeline. In evidence, Mr Given referred to this aspect of the discussion as an example of a more “open ended” style of questioning.
  6. [58]
    On the topic of questioning, Mr Given said “I had to make my own assessment and without making up conversations that I had – which, of course, I’m not going to do – we had social chitchat and we had legal chitchat about the contents of his will and the power of attorney that weren’t all yes and no answers, but I can’t actually remember what we discussed. I can’t remember those questions and answers but … they existed.”[13]
  7. [59]
    He continued later “I just know that I was satisfied of his capacity and that open ended questions were exchanged and answers exchanged. I just can’t remember what they were”.[14]
  8. [60]
    At the hearing, the following discussion between a Tribunal panel member and Mr Given took place:

Adjudicator Lamont: … but do you recall, without being able to recall the specifics, if there were open ended questions in relation to the legal nature of what he was asking you to do?

Mr Given: Yes

Adjudicator Lamont: you believe that they were?

Mr Given: Absolutely … For example, with the will, we discussed his exclusion of his wife. Initially, she received 50%. You’re buying trouble, I recall saying. She has enough, he said. She’s got enough. What she got? She’s got a house, she’s got a newsagency business. He told me those things.”[15]

  1. [61]
    Mr Given gave his evidence in an honest and forthright way and I am of the view that he was telling the truth as he recalls it.
  2. [62]
    The Tribunal finds that:
  1. Ms Winifred Bywater made the appointment with Mr Given’s office for Mr Bywater and Ms Winifred Bywater to see Mr Given concerning instructions for a will and enduring power of attorney.
  2. Initially, Mr Given conducted the interview with both Ms Winifred Bywater and Mr Bywater present. However, after the documents had been prepared, Mr Given met with Mr Bywater alone and, at that time, engaged with Mr Bywater to satisfy himself that the instructions were the instructions of Mr Bywater alone and not influenced by Ms Winifred Bywater, and also that Mr Bywater understood the meaning and effect of such documents.
  3. Ms Winifred Bywater provided detail on less substantive matters, but did not provide instructions in relation to the will and enduring power of attorney. Mr Given did not observe anything which would have suggested that Ms Winifred Bywater was attempting to influence Mr Bywater’s decisions. Instructions on matters of substance were given by Mr Bywater.
  4. During the interview, Mr Given was conscious of the fact that Mr Bywater had clearly suffered a stroke which had affected his speech and mobility, and, being aware of these issues, was alerted to the need to take greater than normal care, spend longer in taking instructions, and establishing to his satisfaction that Mr Bywater was able to provide independent instructions to him and properly understood the nature of the instructions.
  5. Mr Given engaged Mr Bywater in conversation about various issues and used open ended questioning techniques as part of that process.
  6. The note taking made by Mr Given was scant and inadequate. He took notes as a general outline of instructions and then dictated these notes, in Mr Bywater’s presence, into a dictaphone thereby confirming, as he prepared the document, that the instructions were correct. He did not make adequate notes to record the details of the interviews, such as the times when Mr Bywater was alone with him, the questions he asked to satisfy himself as to Mr Bywater’s capacity, or indeed any detail as to Mr Bywater’s capacity.
  7. Because of his assessment of Mr Bywater’s capacity, he did not think it necessary to recommend that medical advice be obtained.

Discussion

  1. [63]
    Unsatisfactory professional conduct includes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.[16]
  2. [64]
    Professional misconduct includes unsatisfactory professional conduct if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence.[17]
  3. [65]
    The Legal Services Commissioner asserts that, as to the making of the enduring power of attorney and the two wills, Mr Given “was or should have been aware that the client may not have sufficient capacity to execute the documents.”[18]
  4. [66]
    Of relevance to this issue are the assertions by the Legal Services Commissioner that, in breach of his duty as a solicitor, Mr Given:
  1. Failed to conduct appropriate enquiries to satisfy himself that the client understood the nature and effect of an enduring power of attorney and was capable of executing the document (charge 1).
  2. Failed to conduct appropriate enquiries to satisfy himself that the client understood the nature and effect of the will and was capable of executing the document (charges 2 and 3).
  3. Failed to seek any medical opinion or information verifying the client’s capacity to sign the enduring power of attorney and the will (charges 1, 2 and 3).
  4. Permitted the client to sign the enduring power of attorney and the wills when he knew or ought to have known that doubts may be raised about the client’s capacity to sign the relevant document (charges 1, 2 and 3).
  1. [67]
    Central to the assertions are whether sufficient indicia were present and apparent which should have made Mr Given aware that his client was not able to provide instructions to him and did not understand the documents, and whether, based on the evidence, Mr Given made adequate enquiries.
  2. [68]
    As both sides have submitted, the outcome of this case will not turn upon whether Mr Bywater had capacity. The Tribunal makes no finding about this issue.
  3. [69]
    The Legal Services Commissioner refers to a number of factors which, it is asserted, should have alerted Mr Given of the need to seek medical advice. These include his age, impairments following a stroke, the fact he recently ceased living with his wife of 30 years, the fact of his move from his matrimonial home at Buderim on the Sunshine Coast to move to reside with his sister at the Gold Coast, the proximity (in terms of time) between the move and the meeting with Mr Given and his apparent intention to empower and benefit his sister who made the appointment for the interview and then accompanied him for part of the interview.
  4. [70]
    It is undesirable to lay down narrow, precise or specific rules as to what factors must be taken into account by a legal practitioner.
  5. [71]
    In preparation of a will, the practitioner must establish a reliable method of communication so the practitioner can be satisfied that the client is providing coherent instructions. An aspect of this is that the client understands the instructions being given. The method of communicating must include questions which go beyond requiring a ‘yes’ or ‘no’ answer – often called open ended questions.
  6. [72]
    The steps required to be taken by the legal practitioner will depend upon the circumstances. For example some circumstances might mean that a practitioner, acting with the expected standard of competence and diligence, will suggest a medical opinion. In other circumstances, this will not be necessary. Some circumstances will require careful observation – others will not. More care will be required of the legal practitioner when indicia, or a combination of indicia, which should alert the practitioner, are present.
  7. [73]
    A person’s age and the fact the person has suffered a stroke will not always (or even generally) be determinative of lack of capacity. Many people continue to have capacity after having had a stroke, even though their speech may be impaired.
  8. [74]
    As Kirby P (as he was at the time) said:

“In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent – more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will.”[19]

  1. [75]
    When considering the indicia which might alert a prudent legal practitioner, whilst those matters described by Kirby P are not determinative of lack of capacity, they are matters which should cause the practitioner to be alert to the question of capacity.
  2. [76]
    The Legal Services Commissioner referred to a number of authorities.
  3. [77]
    In Legal Services Commissioner v De Brenni[20], the practitioner accepted that his conduct amounted to unsatisfactory professional conduct. The practitioner admitted that he did not make sufficient or effective enquiries, nor did he take adequate notes. In addition, the practitioner made an error in witnessing the enduring power of attorney and inappropriately rendered a bill with respect to those services. Wilson J observed that the client was a resident of a nursing home and the practitioner admitted he had made inadequate enquiries about the client’s condition or the reasons for her residence in the aged care facility. The circumstances were different in the present case.
  4. [78]
    Legal Services Commissioner v Comino[21] involved a solicitor who again accepted that he failed to explain the terms of the attorney documents to his clients, did not conduct appropriate enquiries to satisfy himself that they understood the legal effect of the documents, did not conduct appropriate enquiries to satisfy himself that they were capable of executing the documents, did not seek any medical opinion or make any enquiries about the client’s health, did not undertake an interview in accordance with the Adult Guardian Guidelines, and did not make a written record of the steps he took to assess their competence (including any questions and answers).
  5. [79]
    In these circumstances, Wilson J found the conduct to be unsatisfactory professional conduct.
  6. [80]
    In Legal Services Commissioner v Ford,[22] Mr Ford took instructions from his client in a nursing home, where she was brought to him in a wheelchair. Fryberg J was satisfied that a conversation between a member of the nursing home staff and Mr Ford took place before Mr Ford saw his client and that the conversation related to the client’s mental health and her memory loss. Fryberg J observed “there is on the evidence considerable doubt about how much care and attention Mr Ford, in fact, paid to Mrs Adams in this visit. Perhaps the most striking example of that lack of care and attention is to be found in the form of the power of attorney which he took with him.” When the omissions in the power of attorney were drawn to the solicitor’s attention, Fryberg J observes “it is fair to say he candidly admitted the omissions created in his mind doubts about whether he had, in fact, gone through each of the matters in the power of attorney with Mrs Adams. I am satisfied that those doubts were well founded”.[23]
  7. [81]
    Fryberg J found “(the impairment) however would have become apparent to a careful observer carrying out the steps required by the Act and in accordance with the guidelines for the execution of a power of attorney and to someone doing the things which, at common law, a solicitor should do before having a will executed.“[24]
  8. [82]
    Fryberg J referred to a number of factors which should have alerted the practitioner to the possibility that there might be some question as to the client’s capacity, including the client’s age, that she was in a nursing home, the fact she was cutting her family out of her will and leaving everything to the person who was facilitating the arrangements, and that a comment was made to him on his way into the facility regarding the clients mental health and specifically her memory loss.[25]
  9. [83]
    His Honour observes:[26]

“None of those factors, by itself, is conclusive of a failure of the necessary care nor, for that matter, are they collectively capable of requiring a conclusion by the solicitors that Mrs Adams was suffering memory loss or dementia. However, in my judgment, they are such as ought to have alerted a reasonable person to the possibility of such a state of affairs.

In those circumstances I am satisfied that the practitioner failed to conduct appropriate enquiries to satisfy himself that Mrs Adams fully understood the legal effect of the documents and was capable of executing them.”

  1. [84]
    Reference was also made to the Adult Guardian Guidelines and the lack of an appropriate written record of all steps taken in assessing competence. The Legal Services Commissioner has asserted a lack of open ended questioning which, it was submitted, is an essential part of the process in that it ensures best evidence of true understanding. It is correct that this is an essential aspect of the practitioner’s duty, when the circumstances require it.
  2. [85]
    On the evidence before the Tribunal, the Tribunal has found that Mr Given asked open ended questions and paid attention to the role of Ms Winifred Bywater to ensure that the instructions he was receiving came from his client and were not influenced by Ms Winifred Bywater.
  3. [86]
    Mr Given was satisfied that he had established a reliable means of communication with his client, sufficient to allow him to form the opinion that his client understood the effect of his instructions and was able to provide coherent instructions.
  4. [87]
    Mr Whitney, who had undoubted expertise as an accredited succession specialist, concluded:
    1. Factors outlined in paragraphs 1.8 a-e in the disciplinary application (listed in paragraph [3](a)-(e)) would not have placed a practitioner on a heightened sense of enquiry.
    2. None of the facts alleged in paragraph 3.4 (listed in paragraph [4]) would have led a practitioner applying reasonable standards of competence and diligence to be “aware that the client may not have sufficient capacity”.
  5. [88]
    Under cross-examination, he confirmed these conclusions.
  6. [89]
    No evidence was called which contradicted Mr Whitney.
  7. [90]
    In view of the contents of the report by Dr McLennan (dated 4 June 2009), it seems likely that, had Mr Given arranged for Mr Bywater to see his treating doctor, the report would have supported Mr Given’s own observation.
  8. [91]
    Moreover, at about this time, another experienced practitioner, Ms Bulyk concluded that, in her opinion, Mr Bywater had the necessary capacity to complete a power of attorney. This lends support to Mr Given’s own conclusions.
  9. [92]
    In the circumstances the Tribunal is satisfied that:
    1. Through his discussion with his client (which included open ended questions) Mr Given conducted adequate enquiries to satisfy himself that the client understood the nature and effect of an enduring power of attorney and was capable of executing the document (charge 1);
    2. By open ended questioning and active discussion with his client, Mr Given conducted adequate enquiries to satisfy himself that the client was able to provide instructions to him in relation to the wills and was capable of executing the documents (charges 2 and 3);
    3. Indicia such as the client’s age, impairments following a stroke, frailty and changes in circumstances (including substantial changes in the will) should cause a prudent practitioner to be alert, but are not conclusively determinative of lack of capacity. The presence of these indicia would not, of themselves, mean that a practitioner must seek a medical opinion. In the current circumstances, based upon his discussions with the client, Mr Given saw no need to seek medical opinion verifying the client’s capacity to sign the enduring power of attorney and the will (charges 1, 2 and 3);
    4. There was no assertion that Mr Given knew that doubts may be raised about the client’s capacity to sign the relevant document. In the circumstances the Tribunal has concluded that the factors outlined by the Legal Services Commissioner were not, of themselves, sufficient to have conclusively indicated a lack of capacity. It follows that Mr Given did not permit the client to sign the enduring power of attorney, and the wills, when he knew or ought to have known that doubts may be raised about the client’s capacity to sign the relevant document (charges 1, 2 and 3).
  10. [93]
    The Legal Services Commissioner also asserts that Mr Given:
    1. Failed to undertake an interview with the client in accordance with the Adult Guardian’s Guidelines (charge 1);
    2. Failed to make any written record of the steps taken in assessing confidence, including all questions and answers (charges 1, 2 and 3).
  11. [94]
    The Adult Guardian Guidelines discuss potential indicators of impaired capacity. Its requirements include that there be a meeting with the client alone, that discussion include open ended questions, and that there be a written record of the questions and responses.
  12. [95]
    Failure to conduct an interview in accordance with the Adult Guardian Guidelines falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.[27]
  13. [96]
    The Tribunal has found that Mr Given did make use of open ended questioning. However, until the latter part of the interview, Mr Given did not conduct the interview with the client alone, nor did he make adequate notes.
  14. [97]
    As to what is required of a solicitor in such circumstances, Mr Whitney expressed the view that each case is a ‘cost-benefit analysis’. This is perhaps another way of expressing a view that the courts should not place an unrealistic burden on practitioners. That is a sentiment with which I agree. However, having said that, it is essential to maintain high standards in the legal profession. If a particular action is necessary to meet the necessary standard, then the cost benefit analysis is resolved in favour of taking the action.
  15. [98]
    Whether a person has the capacity to make a will is, of course, a matter for the court (not the practitioner). However, the solicitor’s evidence is likely to be important. As the Adult Guardian Guidelines themselves suggest in relation to an enduring power of attorney, “when assessing competence, be prepared for any challenges to your assessment of the principal”.[28] Written and adequate notes are likely to be important in that context. The cost of making such notes is not significant. The ‘cost-benefit analysis’ falls heavily in favour of making the notes.
  16. [99]
    The importance of detailed notes will vary depending on the circumstances. The importance increases if any indicia are present which should alert the practitioner to be vigilant.
  1. [100]
    In this case Mr Given says he was sufficiently aware of the issues surrounding his client’s condition that he aimed to act with greater than normal care. In those circumstances, a practitioner, acting with the required standard of competence and diligence should make and retain adequate notes as to the attendances on his client. The notes should have included detail of the questions. This is an important aspect of the solicitor’s duty in the circumstances.
  2. [101]
    In the cases of De Brenni[29], Comino[30] and Ford[31] one aspect of the conduct of the practitioners was that adequate notes were not taken, and in each decision, this was found to be conduct which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner.
  3. [102]
    The notes prepared by Mr Given were inadequate. Mr Given conceded this and it was the conclusion reached by Mr Whitney. His method of dictating the instructions in the presence of the client is not an adequate substitute for notes of the interview dealing with matters such as those outlined in the Adult Guardian Guidelines.
  4. [103]
    In the circumstances, Mr Given’s failure to prepare adequate notes of the interview and the fact that he did not conduct the interview with Mr Bywater alone until reviewing the documents, is conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner, and so amounts to unsatisfactory professional conduct as is contemplated by s 418 of the Legal Profession Act 2007.
  5. [104]
    Mr Given has referred to the cases of Legal Services Commissioner v McLelland[32] and Legal Services Commissioner v Bone[33].
  6. [105]
    Those cases contemplated that the relevant definition of unsatisfactory professional conduct may not embrace all cases of error, so that there might be conduct which, whilst amounting to a failure to maintain reasonable standards of competence or diligence, may not be substantial enough to fall within the ambit of the definition. Wilson J held that the failure must be “sufficiently substantial” to warrant the conclusion that it constitutes unsatisfactory professional conduct.
  7. [106]
    Not every error (for example, every negligent act) will amount to unsatisfactory professional conduct under s 418 of the Act. However, in this case, given the central importance of a practitioner’s evidence as to capacity and given that Mr Given was, on his own evidence, on high alert, the need to take adequate contemporaneous notes was a matter of great significance and sufficiently substantial to fall within the definition of unsatisfactory professional conduct as is contemplated by s 418 of the Act.

Penalty

  1. [107]
    The primary aim of penalty in disciplinary proceedings is to protect the public and not punish the practitioner. In this case, Mr Given is no longer practising as a legal practitioner, so personal deterrence is not relevant.
  2. [108]
    General deterrence remains relevant and important to ensure that proper standards in the profession are maintained.
  3. [109]
    In De Brenni[34] the practitioner was publicly reprimanded and fined $1,000.00. In Ford[35] the penalty was a public reprimand and no pecuniary penalty (in imposing no fine, Fryberg J indicated that he viewed the case as a test case, saying that future cases with knowledge of his decision might be treated in a different way), and in Comino[36] the practitioner was publicly reprimanded with a fine of $2,000.00.
  4. [110]
    In the circumstances, the Tribunal makes the following orders:
  1. Mr Given be publicly reprimanded;[37]
  2. A penalty in the sum of $1,500.00 be imposed.[38]
  1. [111]
    The Legal Services Commissioner has also sought an order that Mr Given pay costs.
  2. [112]
    Under s 462(1) of the Act, the Legal Services Commissioner is entitled to an order for costs unless exceptional circumstances exist.
  3. [113]
    No such exceptional circumstances exist in this case.
  4. [114]
    The Tribunal orders that Mr Given pay the Legal Services Commissioner’s costs assessed on the Supreme Court scale.

Compensation order

  1. [115]
    Under s 456(4)(b) of the Act, the Tribunal may make a compensation order.
  2. [116]
    A compensation order includes an order that the practitioner pay to a claimant an amount by way of compensation for pecuniary loss suffered because of conduct that has been found to be unsatisfactory professional conduct or professional misconduct of an Australian legal practitioner involved in the relevant practice.[39]
  3. [117]
    Section 465 of the Act requires that the compensation order must not be made unless the Tribunal is satisfied that the complainant has suffered pecuniary loss because of the conduct concerned and that it is in the best interests of justice that a compensation order be made.
  4. [118]
    A compensation order must not be made for pecuniary loss for which the relevant complainant has received or is entitled to receive compensation under an order that has been made by a court or compensation from the fidelity fund if a claim for payment from the fidelity fund or other fund has been made or decided.
  5. [119]
    In this case, a claim for compensation has been made by Ms Elizabeth Bywater
  6. [120]
    To assist in the determination of that claim, it is directed that:
    1. The claimant, Ms Elizabeth Bywater, file four copies in the Tribunal and serve one copy upon Mr Given of any evidence and submissions upon which she intends to rely in making a claim for compensation pursuant to the provisions of the Legal Profession Act, by:

4.00pm on 3 July 2015.

  1. Mr Given file four copies in the Tribunal and serve one copy upon the claimant, Ms Elizabeth Bywater, of all evidence and submissions upon which Mr Given intends to rely in relation to the claim for compensation, by:

4.00pm on 31 July 2015.

Footnotes

[1]Application for disciplinary proceedings, paragraphs 1.8, 2.6 and 3.4.

[2]In the matter of Robert Patrick Bywater, G18935.

[3]Affidavit of Ross Given sworn 5 September 2013, paragraphs 13-15.

[4]Ibid, paragraph 16.

[5]Ibid, paragraph 39.

[6]Ibid, paragraph 40.

[7]Ibid, paragraph 17.

[8]Ibid, paragraph 18.

[9]Ibid, paragraph 26.

[10]Ibid, paragraph 30.

[11]Ibid, paragraph 31.

[12]Ibid, paragraph 22.

[13]Transcript of proceedings of 5 September 2014, page 22 lines 35-42.

[14]Ibid, page 23 lines 23-36.

[15]Ibid, page 24 lines 1-15.

[16]Legal Profession Act 2007 (Qld) s 418.

[17]Ibid, s 419(1)(a).

[18]Application for disciplinary proceedings, paragraphs 1.8, 2.6 and 3.4.

[19]Re Griffith (dec’d); Easter v Griffith & Ors (1995) 217 ALR 284 at 295.

[20][2011] QCAT 340.

[21][2011] QCAT 387.

[22][2008] LPT 12.

[23]Ibid, page 17 line 30 to page 18 line 16.

[24]Ibid, page 21 lines 20-30.

[25]Ibid, page 21 lines 33-46.

[26]Ibid, page 22 lines 8-39.

[27]Legal Services Commissioner v Ford [2008] LPT 12.

[28]Adult Guardian Guidelines page 3.

[29][2011] QCAT 340.

[30][2011] QCAT 387.

[31][2008] LPT 12.

[32][2006] LPT 13.

[33][2013] QCAT 550.

[34][2011] QCAT 340.

[35][2008] LPT 12.

[36][2011] QCAT 387.

[37]Legal Profession Act 2007 (Qld) s 456(2)(e).

[38]Ibid, s 456(4)(a).

[39]Ibid, s 464(d).

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Ross Alexander Given

  • Shortened Case Name:

    Legal Services Commissioner v Given

  • MNC:

    [2015] QCAT 225

  • Court:

    QCAT

  • Judge(s):

    Thomas P

  • Date:

    12 Jun 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Easter v Griffith & Ors (1995) 217 ALR 284
2 citations
Jump To
Cite 1 - (1995) 217 ALR 284
Cite 2 - (1995) 217 ALR 284
Legal Services Commissioner v Bone [2013] QCAT 550
2 citations
Jump To
Cite 1 - [2013] QCAT 550
Cite 2 - [2013] QCAT 550
Legal Services Commissioner v Comino [2011] QCAT 387
4 citations
Jump To
Cite 1 - [2011] QCAT 387
Cite 2 - [2011] QCAT 387
Cite 3 - [2011] QCAT 387
Cite 4 - [2011] QCAT 387
Legal Services Commissioner v de Brenni [2011] QCAT 340
4 citations
Jump To
Cite 1 - [2011] QCAT 340
Cite 2 - [2011] QCAT 340
Cite 3 - [2011] QCAT 340
Cite 4 - [2011] QCAT 340
Legal Services Commissioner v Ford [2008] LPT 12
5 citations
Jump To
Cite 1 - [2008] LPT 12
Cite 2 - [2008] LPT 12
Cite 3 - [2008] LPT 12
Cite 4 - [2008] LPT 12
Cite 5 - [2008] LPT 12
Legal Services Commissioner v McClelland [2006] LPT 13
2 citations
Jump To
Cite 1 - [2006] LPT 13
Cite 2 - [2006] LPT 13

Cases Citing

Case NameFull CitationFrequency
Legal Services Commissioner v Given (No 2) [2015] QCAT 4793 citations
Legal Services Commissioner v Ho [2017] QCAT 952 citations
NX [2015] QCAT 5342 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.