Every client is unique. Each one presents his or her own individual challenges and advantages. This is particularly true for lawyers with elder clients. As we age, our minds tend to slip. But at what point is this a concern for attorneys? Working with clients with questionable mental wherewithal is a recurrent concern amongst elder law and estate planning attorneys. Concerns are justified, as legal malpractice suits regarding the capacity of elder clients are swinging toward a higher burden of diligence by attorneys in the field.
What guidance do attorneys with aging clients have? How do they handle a client lacking the requisite mental capacity to transact? Can an attorney truly be certain that they have found a sufficient degree of lucidity?
There are steps that elder law and estate planning attorneys can take to protect themselves – and the client – when concerns of diminished capacity arise. The bottom line is that a diligent attorney will use common sense and established rules of assessments and conduct to decide whether their client is cognizant enough to utilize their services, and how to proceed from there.
Indications of Diminished Mental Capacity
After the initial meeting with a client, an attorney may not meet with that client again for some time. Clients face many obstacles in the time between these meetings. Often, aging clients begin to struggle with mental faculties over time. A once-competent client may no longer have the requisite level of capacity to modify or begin new legal tasks after years since the last interaction between client and attorney. The prospect of a potential elder-client poses additional concerns. Unlike with existing clients, the attorney works to establish competency without the baseline of that of someone they have worked with over time.
A common theme between requisite capacity and various legal tasks is twofold: the client’s ability to understand the task, and their ability to appreciate the consequences of the actions taken. Many red flags can be identified through the typical series of interactions with the client. As a lawyer speaks with the client during consultations and subsequent meetings, the baseline for client behaviors and capabilities will become more obvious.
Key signs of capacity concerns to look for:
- Dependence on others for details about finances, property, or debts
- Excellent recall of past events, but fuzzy about recent happenings
- Difficulty remaining on topic
- Calculation problems
- Consultations set up by a friend or family member
- Dependence on others for travel
Questions of capacity also raise other concerns: does this potential client have other representation? Do they have the requisite capacity to terminate other counsel in order to retain you? According to the American Bar Association, there is a presumption of competency. Still, an attorney must be confident that the client harbored the required capacity for the particular task at the time action was taken.
When assessing a new client’s capacity for forming a client-lawyer relationship, it is critical for the lawyer to pay close attention to the articulated goals, reasonings, and state-of-mind of the client. In subsequent meetings, the lawyer should pay attention to whether these goals are staying fairly consistent – noting any questionable deviations. Maintaining evidence of the reasonable certainty of requisite capacity through notes and other documentation is very important for the lawyer with concerns of possible incapacity. Retaining doctor’s opinions on capacity, meeting notes, and even video records of meetings are helpful in establishing the reasonable belief that a client is capable of executing their own wishes.
Guidance from the Model Rules of Professional Conduct
The Model Rules of Professional Conduct (Model Rules) address some procedures for working with a diminished capacity client. Specifically, Rule 1.14 addresses such representation.
First and foremost, lawyers are expected to maintain as normal of a client-lawyer relationship with the client as possible. Equivalent concentrations on respect, privacy, and level of zealousness is mandatory for all clients. Second, if diminished capacity is reasonably certain, the lawyer is permitted, but not required, to seek out the aid of others, or seek appointment of a guardian, to protect the client and their interests. Third, the lawyer is protected by Rule 1.6 when taking reasonable action to seek out others for the protection of that client.
Keep in mind that states do vary on disclosure of client information in the case of the diminished capacity client and whether seeking aid is mandatory or discretionary. Check your own state for specific guidance. Remember though, Rule 1.6 only protects the lawyer from disclosing reasonably necessary information for the purpose of taking protective action.
Additionally, keep in mind that comment 3 of the Model Rules states that when a client with diminished capacity wishes to have others participate in discussions, the lawyer must still look to the client for decision making. Friends or family members may have helpful input, but the decisions are ultimately those of the client – absent a legally appointed representative. When the client has been appointed a representative, comment 4 of the Model Rules states that the lawyer should look to that representative for direction.
How to Proceed with Representation
According to the ABA Commission on Law and Aging, a lawyer must be able to answer two questions in the affirmative: Does the client have the capacity to contract with you? And do they have the capacity to complete the legal transaction?
Legal malpractice on capacity questions has become a frequent result of not properly recognizing a diminished capacity client. A client with sporadic diminution of capacity can still have “sound mind” for testamentary or other actions during lucid periods. In other words, a client can be incompetent before and after a testamentary action, so long as the client was lucid at the time the action was taken.
Different tasks require varying degrees of competency. Take the given requisites into account when working with diminished capacity clients. A client may have the capacity to enter into a contract, but not donative capacity. Capacity thresholds are different for amending a trust versus making informed health care decisions. Check your state’s specific rules for the particular tasks the client seeks to accomplish.
Even when working with the potentially incompetent client, the lawyer must remember that it is not whether the client seeks to take action against his or her own interest. This alone does not indicate diminished capacity. The question is whether the client is able to appreciate the consequences of the action they seek to take.
Protection for lawyers representing diminished capacity clients lies in documentation of the state of mind of the client. The more documentation an attorney has to justify their belief that the client was satisfactorily competent at the time of the action, the more protection the attorney affords him or herself.
Lawyers want to make sure their client’s best interests are put first. Attorneys need to make sure that the client understands the legal representation and how decisions will affect their family and circumstances. When representing a client with diminished capacity, the road gets a little more difficult but there is help in navigating it. Be familiar with the Model Rules of Professional Conduct and the ethical rules in your state.
Lawyers representing diminished capacity clients risk questions of competency and potential malpractice. However, diligent record keeping of the client’s state will go a long way to mitigate potential malpractice. Common sense, the pertinent ethical rules, and well-established documentation of requisite capacity for the transaction are an attorney’s best ally.
For a detailed guide on working with the diminished capacity client, check out Assessment of Older Adults with Diminished Capacity, a handbook compiled by the American Bar Association Commission on Law and Aging and the American Psychological Association.
ElderCounsel is offering a webinar with CLE credit regarding this issue on September 12. Elder Law Ethics: Representing Clients with Diminished Capacity is sure to be a valuable tool when approaching this very important topic. Sign up today!
Elder Law Ethics: Representing Clients with Diminished Capacity
Wednesday, September at 12:00-1:00 p.m. ET
Presented by: Rebecca Hobbs, CELA