Client Lacked Capacity or Under Duress When Created
The issue of whether someone was under duress or had the required mental capacity to sign a power of attorney is:
- a legal issue; and
- should be decided by the courts.
The Law Society does not have the jurisdiction to review legal issues such as whether someone was under duress or had the required mental capacity to sign a power of attorney.
Unless there is substantial evidence to the contrary, a lawyer or limited licensee should assume a client can:
- make decisions about their legal affairs; and
- give the lawyer or limited licensee instructions.
Lawyers and limited licensees must also maintain a normal professional relationship with a client with diminished capacity to the extent possible. This means the lawyer or limited licensee should:
- respect the autonomy of the client – that is, their right to make their own decisions;
- hold all communications in confidence; and
- carry out all reasonable instructions.
You may submit a complaint if:
- the matter goes to court and the court sanctions the lawyer or limited licensee or comments negatively on their conduct in the handling of the matter; or
- if you believe the lawyer or limited licensee knew or ought to have known the client was under duress or lacked capacity.
Common Questions
Duress is when someone does not enter into the agreement or executing a Will voluntarily, but only because they were forced to. This can be due to intimidation, threats or other extreme pressure tactics. (from the Public Legal Education Association of Saskatchewan (PLEA) website)
A person lacks capacity if they cannot:
- understand information relevant to making a decision
- appreciate the reasonably foreseeable consequences of making, or not making, a decision
A lack of capacity may arise for a host of reasons including, but not limited to, intellectual disability, mental illness, dementia, brain injury and addictions.
To find legal assistance, see the Finding Legal Assistance page on the Law Society website.