Retention of solicitors

Retention of solicitors

A solicitor cannot be retained by a person who does not have mental capacity. There is, however, a presumption of capacity, and since capacity is decision-specific (i.e. the capacity required to make the decision will depend on the complexity of the decision in question), whether or not the prospective client has capacity will depend on the issue or activity in question. An opinion from a medical doctor may be helpful if there is any doubt about whether a prospective client lacks capacity or not.

If a person had previously retained a solicitor while they had mental capacity, but subsequently loses capacity or dies, the retainer will be terminated. Where the client has lost mental capacity, the Hong Kong Solicitor’s Guide to Professional Conduct suggests that the solicitor should take reasonable steps to ensure that the client’s interests remain protected, which may involve contacting the relatives and/or the Official Solicitor.