All solicitors bound by the Australian Solicitors’ Conduct Rules must comply with the following:
8. CLIENT INSTRUCTIONS
8.1 A solicitor must follow a client’s lawful, proper and competent instructions.
By contrast accountants are bound to the following principles:
a. integrity – to be straightforward and honest in all professional and business relationships.
b. objectivity – to not allow bias, conflict of interest or undue influence of others to override professional or business judgements.
c. professional competence and due care – to maintain professional knowledge and skill at the level required to ensure that a client or employer receives competent professional services based on current developments in practice, legislation and techniques and act diligently and in accordance with applicable technical and professional standards.
d. confidentiality – to respect the confidentiality of information acquired as a result of professional and business relationships and, therefore, not disclose any such information to third parties without proper and specific authority, unless there is a legal or professional right or duty to disclose, nor use the information for the personal advantage of the member or third parties.
e. professional behaviour – to comply with relevant laws and regulations and avoid any action that discredits the profession.
Financial Planners in turn are bound by the following prescriptions in the Financial Planner Code of Ethics, a legislative instrument:
You must always act in a way that demonstrates, realises and promotes the following values:
Trustworthiness: Acting to demonstrate, realise and promote the value of trustworthiness requires that you act in good faith in your relationships with other people. Trust is earned by good conduct. It is easily broken by unethical conduct. Trust requires you act with integrity and honesty in all your professional dealings, and these values are interrelated.
Acting ethically, with trustworthiness, promotes trust in the profession of financial advice by consumers, enabling the community to feel confidence in accessing and utilising professional financial services.
In Trusts and Estates practice, accountants, financial planners and lawyers all have to respond to the conduct and instructions of their clients and yet it is only solicitors who are held to a standard to understand the competence of their client in any given matter in which they are involved.
Evolving Good Practice In Dealing With Decision Making Ability of Clients and Patients
Autonomy First remains of the view that the prescription applied to lawyers should also apply to all professions and occupations engaged in the Private Client Services sector. This means that workplaces and workers need to evolve uniform case management practices when working with clients and patients so that good practice can be evolved in:
1. Applying the National Decision Making Principles in day to day to day professional practice.
2. Understanding when it is reasonable to assume the decision-making capacity of clients.
3. Using the consulting phase of client or patient engagement to screen clients for evident decision making ability.
4. Understanding what factual indicators can help client facing workers understand the demonstrated decision-making ability of their client or patient and common pathways of referral that may be available to help them deal with decision making ability evaluation triggers.
5. Establishing improved evidentiary standards in documenting the informed consent of clients to particular types of advice and transactions.
Autonomy First as an Employer Partner of the Society of Trust and Estate Practitioners (STEP) is working with its Community of Practice members, other Employer Partners of STEP, and members of the STEP Academic Community to progress this work.
I Want To Help Clients Constructively When they are faced with Decision Making Ability Problems. Where do I start?
Build your Knowledge about Client Competency and Decision Making Ability Evaluation
Option 1 – Attend one of the Autonomy First Competency Awareness workshops or contact us to arrange for one to be presented to your firm or organisation.
Contact us through the usual channels
Option 2 – Join STEP and engage with their education offerings on the subject and its Mental Capacity Special Interest Group.
Contact STEP in your locality or through the links at www.step.org.
Option 3 – Join the Autonomy First Community of Practice or the CBD Chamber of Commerce Allied Health Roundtable and engage in their work to evolve the common practices outlined above across the disciplines and occupations in the private client services sector. Contact us through the usual channels.
Option 4 – Make a direct referral to one or more of:
1. For Medical led referrals; the Capacity and Capability Clinic at Macquarie University Hospital – see the information at Capacity & Capability Clinic, MQ Health, Macquarie University
2. For Family Dispute Resolution led referrals; the Lets Talk Program at Relationships Australia – see the information at: Let’s Talk — Relationships Australia
3. For any questions about these referrals please contact us through the usual channels.
4. To initiate referrals please use our referral form.
What Outcomes Can We Help Deliver?
- Validating the decision making ability of the client in the context of particular decisions and situations.
- Evidencing the facts that support and appointment of attorney or guardian becoming enduring for lack of capacity.
- Evidencing informed consent in a range of decision making settings.
- Facilitating the construction of shared decision making protocols between a person, their supporters and legal personal representatives.
- Facilitating and delivering cognitive responsive private client services as a law firm and in conjunction with our client’s other advisers and as needed, our community of practice.
- Educating other participants in the Private Client Sector about the implementation of good practice in helping Australians age well.