AA v ZZ

 
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[2011] NZLCRO 1

LCRO 156/10

Concerning An application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

and

Concerning a determination of the Southland Complaints and Standards Committee

Between
AA of X
Applicant
and
ZZ of X
Respondent

AA as the Applicant

ZZ as the Respondent

The Southland Standards Committee

The New Zealand Law Society

The names and identifying details of the parties in this decision have been changed.

DECISION

Application for review
1

In July 2010, the Southland Complaints and Standards Committee declined to uphold a complaint made by Mr AA (the Applicant) against, Ms ZZ (the Practitioner).

2

This review relates to a complaint made against the lawyer acting for the Applicant's wife, L. The Practitioner had acted for L in the preparation of the revocation of an Enduring Power of Attorney ( EPA) and in the preparation of a new EPA. The Applicant had been the attorney in the EPA that was revoked. At the time that she signed the documents L had been a resident at the X Clinic on a voluntary admission for some five weeks, and was apparently due to leave soon after. The appointment with the Practitioner was made by L's sister who had accompanied L to see the Practitioner.

3

The Applicant's complaint against the Practitioner was that L was not legally competent to have revoked the EPA. He contended that the Practitioner had made no effort to seek advice from medical persons responsible for L's care and treatment as to her competency. He informed the New Zealand Law Society that “ The consequences of this document have been traumatic for me and our mutual friends.” He explained this by stating that L's family had removed her from the X care, spirited her to Wellington to care for her and to arrange alternative medicine, where she was also prevented from contacting her dearest friends.

4

The Practitioner denied the allegations. She disputed that L lacked legal competency when signing the documents. Her view was that the fact of L being at X Clinic did not necessarily mean she was mentally incapable or incompetent to manage her own affairs. The Practitioner acknowledged that L's sister had arranged the appointment, had given an indication in advance of what L wanted, and had accompanied L to the appointment with the Practitioner. She described an interview that lasted about one hour, during which time she questioned L. The Practitioner explained that she was satisfied as to L's wishes, and intentions in wanting to revoke the EPA in her husband's favour and execute a new one. The Practitioner had considered L to be competent to have given these instructions. She referred to the legal presumption of competence. She further noted that L had gone to X Clinic for depression at her own volition, and preparing to leave at the time of the appointment (although had elected to stay for a further period) but was free to leave at any time. The Practitioner asserted that L appeared able to make decisions, understand the nature of those decisions and foresee their consequences. She also noted that L had expressed some concern about her husband's reaction to her revoking the EPA.

5

The Applicant wrote again to the Complaints and Standards Officer with his comments on the Practitioner's response. Much of this letter detailed events that had transpired following the revocation of the EPA, which had been alluded to in his original complaint. Additional information was that L had made several attempts to commit suicide, including while she was in the care of her sister. It appeared that at the time that the Applicant wrote to the Committee, L had returned home to live with the Applicant. He wrote he was endeavouring to provide her with the support and stability that she desperately needed in order to pursue her recovery. In his view L had proven herself capable of achieving an outward appearance of normality for short periods of time, but overall, he considered that she lacked competency. He repeated his criticism of the Practitioner for failing to have obtained the input of mental health professionals to ascertain his wife's mental status. He added that the “business at hand” had been directed by other minds, and he took the view that the Practitioner took a very cursory approach to what were critical circumstances and had failed to make prudent enquiries of those responsible for his wife's care.

6

He contended that the Practitioner's views were contradictory which he explained in the following way:

“Now to turn to a more compelling point which demonstrates an absolute contradiction of (the Practitioner's) position. It is useful to consider the paradoxical need to execute powers of attorney (presumably in favour of her sisters?) in paragraph 5. Quite why, when (the Practitioner) had formed the view that (his wife) was perfectly capable of conducting her own affairs and had, therefore, no need to have a power of attorney in my favour, wasn't thought to be necessary to execute new powers of attorney in favour of other parties, …”.

7

The Complaints and Standards Committee had asked a number of questions of the Practitioner, in particular, who prepared the documents, who gave instructions for the work, who paid for the work, who did the Practitioner regard as her client, and who paid the account. The Practitioner answered all of these questions, stating that the documents had been prepared by her on the instructions of the client whom she considered to be L, (notwithstanding that the appointment had been made by L's sister), that the sister had agreed to pay the account and for that reason the account had been sent to the sister. The Practitioner informed the Committee that she spent a lengthy period of time with L, and that she had no doubt that L had asked her sister to arrange the meeting, had put a lot of thought into the matter and that she (L) wished to go ahead with the revocation and replace it with a new EPA.

8

The Complaints and Standards Committee decided to further investigate the matter pursuant to s 152 of the Lawyers and Conveyancers Act and a Notice of Hearing was issued to the parties and submissions invited. The Applicant reiterated his earlier information, but also described a “new development” involving an event that had occurred the week before.

9

The Practitioner provided a lengthy letter to the Complaints and Standards Office, effectively disputing that her client was mentally incompetent and denied that a medical certificate was required. She reiterated that she had taken the instructions from L directly, notwithstanding that her sister had earlier indicated the reasons for the appointment. The Practitioner enlarged on her earlier information concerning the interview with L, adding that L had told her she had been thinking about this (revoking the EPA that appointed the Applicant) for an extended period and that it was not a last minute decision on her part. The Practitioner stated that her client was quite clear about what she intended. She said that L was not under duress during the interview (also acknowledged by the Applicant), and that the L had suggested that she might put it (the revocation) in a bottom drawer, to which the Practitioner said, “yes, you do not need to use it until you feel happy to do so.” The Practitioner noted that L had nevertheless forwarded the revocation to the Applicant the next day.

10

The Practitioner also enclosed a “ To Whom it May Concern” letter, dated 23 June 2010, which had been signed by L and was an acknowledgment by L that she had changed her power of attorney with a sound mind and body, received and fully understood legal advice, and that she had torn up her previous power of attorney so as to ensure it could not be used, and took steps to revoke it and establish a new one. The Practitioner added that if required she would be willing to obtain reports from relevant parties, including from the psychologist at the X Clinic, concerning the impact of her client's discussions. The Practitioner also noted that the Applicant was giving evidence about, and making submissions on, interactions that he...

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