24 August 2023 Issue 4 Bethan Byrne TEP, Helledd Wyn TEP, and Victoria Mahon de Palacios TEP

Employer insight: Mental capacity and your business

In line with STEP’s focus on mental capacity, we spoke to some of our Employer Partners to explore the challenges that an ageing demographic and a rising prevalence of mental decline present for businesses

What challenges do an ageing demographic and the increasing prevalence of mental decline present for your business?

Bethan Byrne TEP: Mental capacity and vulnerability are two closely interlinked areas that have been increasingly high profile in recent years. A key message we have been delivering to our staff is that concerns around mental capacity (and vulnerability) are not limited by age of client or the type of instructions we receive. Our fee earners have always been alive to the fact that clients of advanced age may require additional support to provide instructions and in some cases this may require a formal assessment of mental capacity. However, there is now a greater understanding that it is incumbent on those advising all clients to understand and identify where a client may be vulnerable and require support, whether this is in court proceedings or at a practical level in how we provide advice or take instructions. Where relevant, this involves keeping the question of capacity in mind and under regular review. The challenging element can be supporting both our clients and our staff in understanding these issues. We have established a cross-departmental dedicated mental capacity group to support clients where mental capacity or vulnerability may be in issue.

Helledd Wyn TEP: Multiple complexities of blended families, tax planning and care fee planning and how they both interact are some challenges we face. Understanding that the law around mental capacity can affect anyone at any time and, in fact, crosses over many legal disciplines.

Victoria Mahon de Palacios TEP: In terms of our firm’s private client offering, the main challenge is ensuring that clients have the requisite mental capacity to instruct us to act for them. Questions over capacity would usually arise when we are preparing wills and/or lasting powers of attorney or when helping clients with gifting as part of their inheritance tax planning. Although our private client team would usually come across situations of mental decline more than other teams in our firm, it is becoming an increasing area of focus for teams in the wider firm, not least in our residential property team when taking instructions for property transfers.

What staff training needs has this presented?

Byrne: We run regular annual internal training on vulnerable persons and capacity for our staff and highlight both the relevant legal tests for capacity, as well as how to support and work with vulnerable clients. We also have a documented vulnerable persons policy and a vulnerable clients escalation process, with resources available to all staff via our intranet. As part of this training, we highlight these resources. This includes details regarding where our staff can find resources for their own mental wellbeing when dealing with some of these difficult issues. We also run regular training on working with high-risk clients, led by an external therapist who previously worked as a lawyer so really understands the industry.

Wyn: We conduct internal training on the England and Wales Mental Capacity Act 2005 and what to do if you have an incapacitated client.

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