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?