Neil Sands
A lawyer who prepared a will for a 91-year-old woman even though he knew she had dementia has escaped suspension, despite his “astonishing and sustained lapse” in professional judgment.
Katikati lawyer John Anderson wrote the will for the woman, who was in a dementia ward at the time, and also certified enduring powers of attorney handing control of her affairs to her son, even though he was representing the son in Family Court proceedings relating to the woman’s estate.
The Lawyers & Conveyancers Disciplinary Tribunal said Anderson ignored this conflict of interest, as well as a medical report saying the woman lacked the capacity to understand the consequences of her decisions and was susceptible to financial abuse.
Anderson, who also brushed aside a warning from a staff member at the ward who told him the woman should not be signing documents because she had dementia, preferring instead to rely on his own personal assessment of competence.
“Without being ageist, any 91-year-old resident in a dementia unit presents a profile where care should be taken to assess competence before taking instructions or signing such important documents,” the legal watchdog said in a written decision.
“The carefully assessed medical report; that the person who conveyed the ‘instructions’ was to benefit from the outcome; and that proceedings were on foot in the Family Court amount to circumstances where no competent, diligent lawyer should have proceeded as Mr Anderson did.”
The woman has since died and the tribunal said Anderson’s incompetence had already proved expensive for her estate, with the possibility of further costs mounting.
‘Blighted record’
Anderson admitted the charge of negligence or incompetence in his professional capacity.
The tribunal said his actions were serious enough to being into question his fitness to practise but acknowledged he had “taken steps to re-educate himself and obtained regular oversight of areas of practice that require attention”.
“Despite Mr Anderson’s astonishing and sustained lapse in this matter, we accept that he now has insight into the problem and he has already begun appropriate steps to ensure that future risk to the public is properly managed,” it said.
“This is so, notwithstanding that Mr Anderson’s prior disciplinary history which most relevantly includes two recent instances of (much lesser) unsatisfactory conduct where he failed to avoid conflicts of interest.”
The tribunal said Anderson had practised for more than 50 years and was nearing the end of his career. It also noted that he had accepted responsibility for his lapse and taken steps to remedy it, including CPD courses and agreeing to undertake “supervisory/mentoring” meetings with a solicitor at a local firm.
“We agree with counsel that suspension is not required here,” it said.
Instead, the tribunal fined Anderson $9,000, ordered him to pay costs totalling more than $11,000, and contribute a total of $25,000 to the woman’s estate, almost $2,900 of which has already been paid.
The balance of more than $22,000 will be paid into an independently administered trust and used to pay for the woman’s estate to get probate.
In addition, Anderson must meet with his supervising solicitor fortnightly until May next year and pay her “a reasonable fee” for her services.
The tribunal placed a formal censure on Anderson’s record, which reads:
“Mr Anderson, you have blighted your long record as a lawyer by acting in a situation of conflict and by ignoring multiple red flags that you were dealing with a person who lacked competence to instruct you or to sign important documents. In addition to a fine, compensation and other sanctions, this censure reminds you and others of the perils of failing to pay adequate regard to such matters.”
The decision is available here.
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