Penalty for solicitor who ignored elderly client’s ‘red flags’

In a March 2023 notice of determination, the Victorian Legal Services Commissioner (VLSC) advised De Marchi he was reprimanded and required to undertake one additional unit of continuing professional development (CPD) in relation to capacity.

De Marchi tried to have the decision set aside in the Victorian Civil and Administrative Tribunal but was instead ordered to complete three additional CPD units between 2026 and 2028.

In his decision, handed down last week, tribunal member Neill Campbell said the proven conduct was “serious”, particularly in circumstances where De Marchi was on notice about his client’s capacity from the power of attorney, a solicitor, and social worker.

“He was also on notice by his holding of historical medical opinions as to [the client’s] previous lack of decision-making capacity.

“These were red flags [that] were very specific to his case. There were also more generic red flags, such as [the client’s] age and accommodation,” Campbell said in his written decision.

Campbell added that given the “very significant consequences” for a person who makes a power of attorney, a legal practitioner involved in this type of legal work “should do so with a high degree of diligence, which was lacking in this case”.

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The client approached De Marchi in September 2018 with concerns about his power of attorney, known only as Mr P.

Later that month, Mr P’s solicitors advised De Marchi his client suffered from psychiatric problems. They attached an expert report that noted the client did not have the capacity to manage finances, make lifestyle decisions, and his power of attorney should be activated.

Several weeks after De Marchi made the new power of attorney, the client stabbed Mr P with a small fruit paring knife.

The tribunal was “comfortably satisfied” that the client’s history of medical assessments, along with reports of his behaviour and the stabbing of Mr P, “strongly support a finding that [the client] did not have capacity to execute a new power of attorney”.

De Marchi told the tribunal he believed the client fully understood the powers of attorney and, had he or his staff been concerned about his capacity, the new power of attorney would not have been drafted.

The solicitor also argued it “spoke volumes” of his client’s capacity and understanding “as to how things ought to be conducted” when he brought his new power of attorney into the office for introductions.

Campbell said the client’s wisdom in making a decision to replace his power of attorney was not relevant to his capacity.

Similarly, the client’s concerns about Mr P, “legitimate or otherwise”, were not determinative as to the capacity assessment.

Having found De Marchi should have had serious concerns about the client’s capacity, the tribunal said he should have “taken further action” before facilitating the execution of the new power of attorney.

“The tribunal is comfortably satisfied that to facilitate the execution of a power of attorney without undertaking further investigation, and in this case, without an up-to-date medical opinion, was not the conduct of a competent and diligent practitioner,” Campbell said.

The case: De Marchi v Victorian Legal Services Commissioner (Legal Practice) [2025] VCAT 554