HF v SZ

• Jurisdiction: New Zealand
• Judgment Date: 03 March 2010
• Neutral Citation: [2012] NZLCRO 15
• Docket Number: LCRO 186/09
• Date: 03 March 2010
• Court: Legal Complaints Review Officer

[2012] NZLCRO 15

LCRO 186/09

CONCERNING an application for review pursuant to Section 193 of the Lawyers and Conveyancers Act 2006

AND

CONCERNING a determination of the Auckland Standards Committee 4

Between

HF of Auckland

Applicant

and

SZ of Auckland

Respondent

Counsel:

HF as the Applicant

SZ as the Respondent

The Auckland Standards Committee

The New Zealand Law Society

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

DECISION

1 The application was made by the Applicant for a review of a determination that had been made by Auckland Standards Committee 4. The Applicant is a law Practitioner who was the subject of a complaint by the Respondent. The Standards Committee found against the Practitioner in respect of the substantive complaint, and imposed a fine of $1,500 and costs of $1,000, and ordered that the Practitioner's name be published in LawTalk.

2 The review application was in relation to all aspects of the Standards Committee determination. A review hearing took place on 23 February, and was attended by the Practitioner and his counsel. Also appearing was the Respondent with two members of her family, namely her sister and her uncle.

Review of substantive decision

3 The original complaint by the Respondent related to the practitioner having prepared a will, and enduring powers of attorney (welfare and property) for her mother, Mrs AW. The complaint arose because Mrs AW is known to suffer from some mental deterioration, and the Respondent, her daughter, was concerned that her mother had signed these documents when her legal competency was impaired. After considering all of the information provided in relation to the matter the Standards Committee upheld the complaint. The Committee noted that the Practitioner had been informed that Mrs AW was in the ‘early stages’ of Alzheimers but that he was not aware that she is a patient of the ACV Clinic. He made no independent enquiry in relation to her mental status, relying instead on his own assessment of her ability to understand what was going on. The Committee wrote that it was essential to the validity of a will that a testator was of sound mind. The Committee stated that the Practitioner was not medically trained, and when alerted to the fact that his client may not fully understand the importance and impact of a will and a power of attorney, he should have obtained a medical report. The Committee found that the Practitioner had failed to take sufficient steps to establish Mrs AW's competency at the time he was advising her.

4 The background is that an appointment was made by Mr and Mrs AV for their friend, Mrs AW, to see the Practitioner. Mr and Mrs AV are existing clients of the Practitioner. The Practitioner took instructions in relation to the preparation of a will and also of enduring powers of attorney which appointed Mr and Mrs AV as the attorneys. At no time throughout the meeting was Mrs AW interviewed alone, so that at all times throughout the interview Mr and Mrs AV were present and it appeared from the evidence that they had reasonable involvement in that discussion. It was Mrs AV who mentioned to the Practitioner that Mrs AW was in the early stages of Alzheimers. The documents were prepared while they all waited, and the Practitioner attended to their execution on that same day. He rendered an account to Mrs AW. It seems the family came to learn of Mrs AW's meeting with the Practitioner when her brother discovered the Practitioner's account among other accounts that he paid for Mrs AW under an existing power of attorney.

5 Through his counsel the Practitioner submitted that by his assessment Mrs AW had the required legal and testamentary capacity to instruct him as to her wishes. He had arrived at this assessment having spent 30-45 minutes with her, despite having been informed by Mrs AV that she had ‘ onset of Alzheimers’. It was submitted that Mrs AW appeared aware of why she was there, what property she had to dispose of by will and who were to be the beneficiaries. It was further submitted for the Practitioner that “ Without clear and perhaps compelling reason to suspect that the elderly client may not have proper capacity or ability, he is bound to act on the instructions as [the Practitioner] did. At the time he did this there was no legal requirement for him in such circumstances to seek or request a medical opinion as to [Mrs AW's] legal capacity or testamentary capacity.” And later, “……. it was not for [the Practitioner] to decline or refuse instructions of an adult who appears to have legal and testamentary capacity. Indeed if he were to do so, he may well be subjected to a complaint for misconduct in refusing such instructions.” Counsel added that the Practitioner was unable to answer whether Mrs AW had such capacity but that the Practitioner had genuinely and sincerely believed that she did. He submitted that the Standards Committee was incorrect in its findings.

6 For the review the respondent provided copies of medical reports, some of near contemporaneous date with the time of her visit to the Practitioner. These were provided to the Practitioner and his counsel. There are six reports and are all from various service providers within [Auckland] District Health Board. They include an Occupational Therapy Overview Report (July 2008) and a home visit report by Mental Health Services for Older people (June 2008). There are two reports dated in the second half of 2007, being a discharge report and an out-patient report by Mental Health Services for Older People. The last report, also 2007, is a General Medical report. These reports were not available to the Committee when...