Welcome to a new series of articles from the SWW Technical Team; Common Questions in our Inbox. For this instalment, we have decided to do something completely different and consider remote instruction taking along with some other common issues will writers may face.
Is it acceptable to take instructions over Skype, Whatsapp or FaceTime?
Since restrictions were imposed on businesses during the COVID-19 pandemic many practices have changed from having meetings in person to having meetings over Zoom or Microsoft Teams. Whilst taking instructions remotely is not a new concept, more will writers are using this method to have a greater reach to the public to offer their services without having to spend time driving to their homes.
The first point we would state is that it’s perfectly acceptable to hold meetings in this way if the clients agree with it. You may have some clients that prefer meetings in person or are simply not able to work Zoom or Microsoft Teams for example.
If meetings are held remotely, ensure that prior to the call, the clients have someone certify the ID you would normally seek. You will then be able to accept a scanned copy from the client before the meeting. This will ensure the person you are speaking to over the video call is the client.
Onto the subject of capacity, it would still be perfectly fine to assess capacity over a video call using the Banks v Goodfellows test.
As always, ensure detailed notes are taken during each meeting.
Can I take telephone instructions from a client?
On occasion, you may need to take instructions by telephone if no access to video-calling is available. Lots of companies out there work solely on this basis.
It is inherently less secure as you lack the advantage of being able to see who is present with the client at the time the instructions are being given.
There’s no official guidance from STEP or the Law Society on how this should be managed, however the Law Society’s Wills and Inheritance Quality Scheme (WIQS) Protocol says:
“In accordance with the practice’s policy on taking instructions … where the practice takes instructions without a face-to-face interview, preserve and retain:
- the preliminary information provided to the clients;
- any checklist or information sheet completed by the clients; and
- the instructions for the will prepared;
for the same period as attendance notes of face-to-face meetings.”
During the meeting I noticed someone other than the client was answering the questions, what do I do?
During the meeting, it is important for you to ensure there are no concerns of coercion or undue influence. When holding a client meeting it is best practice to ensure no one else is in the room other than the client. If someone else is present, make a record of their name.
If it is being noted that someone else is answering for the client, you should advise them that the responses need to come from the client only. Alternatively, you are within your right to ask them to leave the room.
If the client insists on them being present, depending on the individual circumstances, if you are happy to proceed with them not answering on the client’s behalf, at the end of the meeting you should ask the other person to leave the room and confirm with the client that they are happy with the instructions they have provided and that it is in line with their wishes.
More importantly, if you do have concerns of undue influence or coercion, you should not proceed with the meeting.
Can I refer the client to a doctor if I have concerns over capacity?
Yes, you can.
Where you have carried out your own assessment of capacity using the Banks v Goodfellow test and have some concerns over the client’s capacity, the Golden Rule should be applied. It can also be a good idea for the client to see a mental capacity assessor where the Will is likely to be contentious.
What do I do if I have concerns over capacity and the client is refusing to see a mental capacity assessor?
If you have concerns and the client is refusing to see a mental capacity assessor, you should not proceed.
My client is not returning my calls and emails and they have not had the final Will.
Once the draft Will has been sent to the client for comment, if you have chased them on numerous occasions by letter and telephone and still have not heard anything, providing you have documented all this then your responsibility ends.
You should send a final letter (adding a copy to your file) to advise that you have tried to contact them following the draft Wills being sent and that you have not heard from them. The letter should also explain the consequences of the Will not being signed.
How long do I have to store client documentation for?
We advise client files are kept for 6 years after the testator’s death. This would include questionnaires, attendance notes, a scanned copy of the Will, LPA questionnaires, attendance notes and scanned LPA’s.
Have a question of your own for the SWW Technical Team? Send it to us at email@example.com and where possible, we’ll advise.
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