Mind the gaps: ethical representation of clients with questionable mental capacity

Abstract

Lawyers play an important role in protecting the interests of the vulnerable in society. Increasingly those engaged in working with clients who are mentally ill, elderly, or experiencing fluctuating mental capacity, are called upon to make decisions and protect interests of clients who struggle to understand the legal consequence and meaning of their decisions. Ethical principles that prohibit lawyers acting on anything other than (legally) competent instructions, and disapprove of acting ‘in the best interests’ of clients in the absence of competent instructions, create a series of philosophical and practical challenges to lawyers who work in this area. This article considers the evolution of ethical guidelines in Australia and the United States, noting the significant divergence in philosophy and practice within these jurisdictions.