The ethical issue of representing a client with diminished capacity frequently arises in estate and probate practice. Oftentimes, an adult child will bring a parent to an attorney’s office to prepare and execute estate plan documents, because the parent has recently been diagnosed with dementia or “is not doing well.” These are the last-minute preparers. Sometimes the parent has an estate plan, but now the adult child brings the parent into the attorney’s office to make changes. Beside the obvious question of undue influence, there is the question of capacity to execute legal documents. Finally, there are the parents with an estate plan appointing an adult child or children to act as personal representatives of the parents and their estates, and other family members raise claims of mismanagement or abuses of power against the representative. The attorney faced with these situations must ask herself whether the client lacks capacity to make any legal decisions, whether the attorney may represent or continue to represent the client, and/or whether the attorney is authorized to notify others of the client’s risk of harm.
As with most state statutes, the California Probate Code sets out guidelines for determining a person’s capacity. Although attorneys are not typically licensed physicians, the criteria set forth in the code provide the basic framework for the attorney to assess the client’s capacity. Similarly, the American Bar Association, in conjunction with the American Psychological Association, has published a handbook for attorneys to refer to when making similar assessments in regard to the client’s mental capacity. The basic presumption is that a person is of sound mind and, therefore, legally competent to make his or her own decisions, which includes the capacity to execute legal documents. Depending on the circumstance, the attorney must review the applicable capacity standards when representing a client. For instance, if the client is brought to the attorney to amend a trust, the legal standard of capacity is different than making informed health care decisions.
Determining whether the client lacks capacity to perform a task, typically involves assessing whether the client is able to effectively communicate and understand the decision and its consequences. When questions of capacity arise, the attorney must properly assess and document the client’s capacity. A simple conversation with the client will give the attorney the opportunity to make an assessment of capacity.
Protecting an Incapacitated Client
Once the attorney has determined the client is incapacitated, what can he or she do for the client? What steps can the attorney take, if any, to protect the client at risk of harm? Is it ethical to file a conservatorship or notify third persons of the client’s incapacity?
American Bar Association’s Model Rule of Professional Conduct 1.14 states that when representing a client with diminished capacity, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” The “normal client-lawyer relationship” involves communicating with the client, informing the client of the progress of his or her case, and maintaining the client’s confidences. How is the attorney to continue representation with a client who cannot effectively communicate with the attorney and/or is unable to understand the information given to the client? What happens if the attorney learns during the representation that a third party is abusing the client, but the communication was made in confidence?
In those situations, the rule permits a lawyer who believes the client has diminished capacity or may be at risk of harm and cannot adequately protect his or her own interest to “take reasonably necessary protective action” including “seeking the appointment of a guardian ad litem, conservator or guardian.” Essentially, the attorney is given the right to reveal confidential communication to protect the client. Of course, the attorney must always be guided by the client’s best interests.
Other states, such as Utah, Illinois, and Arkansas, have adopted the rule 1.14, giving attorneys not only guidance, but also the affirmative authority to take “necessary protective action” for their clients. “Necessary protective action” includes notifying family members or public agencies if the client is at risk of substantial harm, financial, physical or otherwise.
California State Bar has proposed, but has not adopted, a similar rule. Instead, attorneys must follow the current Rules of Professional Conduct and Business and Professions Code, which requires the attorney to avoid “interests adverse to a client” and “representation of adverse interests.” Filing a conservatorship on behalf of your client to protect him or her from potential financial elder abuse is representing interests adverse to a client. After all, a conservatorship is essentially restricting the client’s freedom and taking away rights, such as management of one’s own finances.
In California, attorneys are limited in what they can do to protect the client, because of the duty to maintain the client’s confidences “at every peril” to the attorney. However, a California attorney may reveal confidential information to prevent criminal acts that may result in substantial bodily harm or death. Otherwise, the attorney may not reveal any confidential information, without the client’s informed written consent. Usually, a client with diminished capacity could not give such informed consent. Thus, the California attorney may have violated her ethical duties if a report is made to third parties, even if the report is made for the client’s protection. The important thing for all attorneys representing clients with diminished capacity to remember is that the client’s needs and desires are the highest priority. In those states following the ABA model rules, the attorney is authorized to take affirmative action, and arguably may have violated her ethical duties by failing to take affirmative action, to protect the client from potential and/or actual abuse.
ABA News, “Who is the client, and other questions in dealing with diminished capacity”.
ABA Commission on Law and Aging, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers