What If My Client Has Diminished Capacity?
While some with diminished mental capacity cannot make legally binding decisions, others can understand, deliberate on, and reach conclusions about matters impacting their own well-being.
Even so, attorneys can bring in family members to assist in the representation of a client, if necessary. If the client wants family members or other people to participate in discussions, attorney-client privilege is not broken if those individuals sit in on meetings. However, we must look to the clients to make decisions on their own behalf. There is no gray area on whom an attorney represents.
Types of Diminished Capacity
Our clients can suffer from varying degrees of incapacity; some clients are obviously incapacitated, whereas others can hide their mental state better. Specifically, an incapacitated person may have no power to make legally binding decisions, but a client lacking legal competence can understand and reach conclusions about matters affecting their own well-being.
Therefore, the law recognizes intermediate degrees of incompetence. It is important that, as attorneys, we understand that there are varying degrees of capacity, and it is not a stagnant condition; people can handle certain situations better than others.
What Can Impact Capacity?
Testamentary capacity can be impacted by: Alzheimer’s disease or another type of dementia, alcohol or substance abuse, and mental health disorders. Attorneys must know and understand these impacts, as we hope to question the testamentary capacity of clients ourselves before a court or opposing side.
This is not to say that everyone with Alzheimer’s disease, alcohol or substance abuse, or mental health disorders lacks testamentary capacity. Individuals with these diseases can have lucid moments and have the capacity to create binding documents despite being incapacitated the next day. It is important that an attorney notes a client’s mental capacity at the time of discussing and signing documents.
Conclusion
Attorneys must practice extreme care when completing work on behalf of a client with diminished testamentary capacity. We must ensure that everything is documented in case something is later disputed after signing or family members question how their loved one was during an attorney-client meeting. But most of all, we must remember that clients with diminished capacity deserve our full and complete attention on their matter, and our work is not sacrificed based on someone’s capacity.
The ABA book Alzheimer’s and the Law: Counseling Clients with Dementia and Their Families provides additional information regarding how an attorney can best treat clients with diminished capacity, how to determine whether someone can make decisions for themselves, and the various life events that can impact a client’s testamentary capacity.