Australian lawyers' views on competency issues in older adults

Lawyers are often called upon by their older clients to draft contracts, make up wills or powers of attorney, or provide other forms of legal advice or service. With the increasing numbers of older people in the population, the numbers of older clients for legal practitioners is likely to increase. Older people are also at increased risk for impaired cognitive processes that can affect their ability to make reasoned judgements in civil contracts and other legal arrangements. Here we report on the results of a survey of 302 Australian solicitors as to their experience and practices in determining the capacity of older clients to make legal decisions. The responses, reflecting a 20.7% return rate, showed a wide range of experience in conducting capacity assessments, with a mean of 15.7 years (SD = 10.59). There was a very wide range of practices in determining capacity with no consensus. The most frequent form of questions older clients were asked related to personal and family history. Less than one-quarter asked for the rationale of the decision: the most appropriate form of question in the literature. The results suggest a need for further training of solicitors in the assessment of the capacity of older clients to make legal decisions.