Professional misconduct for solicitor who failed to adequately assess client’s capacity
November 16, 2018
A Hallam sole practitioner who failed to adequately assess his client’s capacity to give instructions has pleaded guilty to professional misconduct.
The Victorian Civil and Administrative Tribunal heard that in February 2014, solicitor Mr Mark Bramich prepared an enduring power of attorney (financial) and an enduring power of attorney (medical) for his elderly client. The client’s son-in-law and granddaughter were appointed as joint financial attorneys, and her son-in-law as medical agent.
In July 2015 the client was admitted to a nursing home for respite care. On 5 August 2015, family members attempted to make an appointment for the client to visit Mr Bramich to amend her will and powers of attorney. That evening the son-in-law informed the nursing home staff that as medical agent and joint attorney he did not authorise the client to be removed from the facility for any reason.
On 6 August 2015, Mr Bramich wrote to a member of the client’s family, placing her on notice that under no circumstances was she to attempt to remove the client from the nursing home. The letter stated that the client ‘would lack the capacity to provide instructions and to understand the nature and effect of the documents referred to …, namely a Power of Attorney and Will’. The letter advised that the planned meeting must be cancelled.
The following day Mr Bramich received a letter signed by the client seeking to terminate his retainer, effective immediately. Acting on the instructions of the son-in-law, Mr Bramich then filed an urgent application with VCAT for a full psychological assessment of the client and orders confirming the powers of attorney.
The Victorian Legal Services Commissioner told VCAT that at no point, prior to filing the VCAT application, did Mr Bramich meet or communicate with the client to verify her capacity to provide instructions and/or to establish whether the power of attorney (medical) had commenced. The Commissioner contended that Mr Bramich had formed his view of his client’s capacity, based on material provided months earlier by the family.
The Commissioner also told VCAT that Mr Bramich failed to advise the son-in-law that the power of attorney (medical) did not authorise him to prevent the client from leaving the nursing home.
Mr Bramich pleaded guilty to two charges of professional misconduct for acting on the instructions of the medical agent without satisfying himself that his client lacked capacity to provide instructions, and for failing to advise the medical agent of the limits of his power and his responsibility to assess the client’s capacity.
Mr Bramich also pleaded guilty to one charge of unsatisfactory professional conduct for failing to provide costs disclosure to his client and/or her attorneys. VCAT noted that Mr Bramich’s failure to provide costs disclosure was sufficiently serious to go beyond just a reprimand.
VCAT reprimanded Mr Bramich, fined him a total of $4,000, and ordered him to pay the Commissioner’s costs fixed at $10,000.
VCAT and the Commissioner noted Mr Bramich’s voluntary completion of extra continuing professional development units in powers of attorney and capacity reduced the need for an additional order to undertake further education.
For further information, download the VCAT decision.