A lawyer admitted he failed to take proper steps to ensure an elderly client had the capacity to execute a will and power of attorney.
The Legal Practice Board of Western Australia and associate Teck John Ling agreed to settle disciplinary proceedings on the basis that the lawyer be reprimanded, undertake two additional hours of continuing professional development, and pay compensation.
According to a statement of agreed facts, filed with the State Administrative Tribunal, Ling failed to take adequate or proper steps to reasonably satisfy himself that a 78-year-old client had the capacity to give instructions with respect to a will.
The elderly client attended Ling’s firm in July 2022 with a colleague he said he wanted to leave the entirety of his state to, as well as appoint her as an executor and list her daughter as the default executor.
The colleague and her daughter were also to be appointed as the enduring power of attorney and substitute attorney under this will.
At no point during this meeting did Ling ask the client “in a non-leading form or otherwise” about whether he made previous wills or testamentary instructions, which would have revealed his previous will had left the majority of his estate to his second cousin.
He also failed to ask about the value of his estate or assets, why he wished to leave a gift of $50,000 to a charity, to what extent the colleague had been assisting him, and why she was at the firm.
Ling did ask the client whether he had dementia, to which the client replied no, but did not ask any other medical questions or whether the client would be prepared to undertake an assessment.
During a second meeting the following month, Ling again failed to ask the client these questions.
Not long afterwards, a registered nurse made an application to the State Administrative Tribunal for guardianship and administration orders for the client. The tribunal heard the client had been diagnosed with dementia since at least June 2021.
At least by August 2022, the tribunal was told the client also suffered from cognitive impairment, Alzheimer’s disease, paranoia and experienced significant short-term memory loss.
The second cousin made an application to the Supreme Court of Western Australia and succeeded in having the will revoked.
The tribunal heard Ling had demonstrated insight by agreeing to the findings of unsatisfactory professional conduct.
The case: Legal Practice Board and Ling [2024] VR 98.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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