YourABA: December 2013
YourABA December 2013 Masthead

Recognizing and dealing with diminished capacity in older clients

With baby boomers entering their 60s and the over-80 population growing, many lawyers will likely work with older clients and be forced to make difficult judgments about their clients' capacity for making decisions. While obvious dementia will impair capacity, some older adults with an early stage of dementia or mild central nervous system damage may also have subtle decisional problems.

"Capacity issues today are ubiquitous, they permeate society, and the legal profession is just one example of that," said Dr. Daniel Marson, who serves as director of both the Division of Neuropsychology and the Alzheimer's Disease Center at the University of Alabama at Birmingham. "The brain ages just like every other organ system in the body. ... Over time, you see cognitive decline over many, many abilities."

The recent American Bar Association webinar "Screening and Working With Older Clients With Diminished Capacity: Practical Tools and Strategies" offered suggestions on how lawyers can determine whether a client has diminished capacity. Sixty-three percent of the attorneys viewing the webinar reported assessing capacity in their practices.

There is no one indicator of diminished capacity in a client, but specific "red flag" signs of diminished capacity include memory loss, communication problems, lack of mental flexibility, calculation problems and disorientation.

Some guiding principles of observation for lawyers are:

  • Focus on the client's actual decisional abilities.

  • Do not be misled by cooperativeness, affability or social skills.

  • Pay attention to changes in the client over time.

  • Consider whether mitigating factors (recent illness, bereavement, visual loss) may explain recent changes.

  • Beware of ageist stereotypes.

Marson said to bring up the question of capacity with a client in a normative way and not at the outset of the relationship. He suggested saying something such as, "I work with a number of older clients, and one thing I always ask about in the course of my practice is the possibility of diminished capacity."

A lawyer's referral of a client to a clinician for a cognitive evaluation requires client consent. The referral can also be expensive (often billed, at least initially, to the law firm), traumatic to the client and unsettling to the lawyer-client relationship.

The risk of legal malpractice points to the need for deliberate attention to capacity issues. For example, a disinherited child could allege in a will contest that a lawyer did not exercise proper care because he or she failed to determine the testator's capacity to execute a will. Depending on the specific transaction at issue, as well as the jurisdiction, legal capacity has multiple definitions, and lawyers must be familiar with individual state-based standards.

"Having a relatively simple system in place for identifying, recording and assessing on a preliminary level signs of diminished capacity is essential to avoiding both malpractice liability and ethical sanctions," said Charles Sabatino, director of the ABA Commission on Law and Aging, which sponsored the webinar.

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