September 26, 2017

Ethical Challenges and Responsibilities When Working with Clients with Diminished Capacity

By Kerry Peck

Alzheimer’s disease is an illness that causes the progressive decline of a person’s cognitive ability, which is generally described by doctors in stages. These stages are often categorized as mild, moderate, or severe. As you meet with your next hypothetical client, it is imperative that you discuss with the client and the client’s spouse or family whether the client has an Alzheimer’s diagnosis and what stage has been diagnosed. If the client has recently been diagnosed with early or mild Alzheimer’s, then the client very likely retains the mental capacity to execute a new estate plan.

You should meet with the client and assess their mental capacity/testamentary capacity. A discussion of current events with the client is a recommended method for assessing capacity. Is the client aware of recent international conflicts? Is the client aware of major local events?  I recommend you perform a version of a mini-mental status exam with the client, which includes questions such as:

  • Who is the president of the U.S.?
  • What is the season, month and year?
  • What is your date of birth? 
  • What are your children’s names, if any, or their spouse’s name, if any?
  • Where do you reside and with whom? 

Ask basic orientation questions that yield insight for you, the attorney. If the client passes the informal evaluation with flying colors you are good to go.

But what if the client cannot answer the basic orientation questions, or has been diagnosed with moderate-stage Alzheimer’s? This is when you must consult the code of professional responsibility Rule 1.14: Client With Diminished Capacity, which states in part in Model Rule section 1.14, “(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall as far as reasonably possible, maintain a normal lawyer-client relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”

As you assess your ability to maintain a normal lawyer-client relationship, now is the time to have your client evaluated by a capable doctor. In deciding where to turn for this medical evaluation, I suggest you start with the client’s attending physician. If the client has a long-term relationship with the attending physician, they may have records charting the client’s condition and medications, which can be of great value. If no attending physician is available, then a psychiatrist or neurologist should perform a mental capacity evaluation.

The physician should be advised of the purpose of the exam, and how the exam will be used, i.e. as a basis for confirming capacity or as a basis for filing a guardianship case. “Limited disclosure” of the lawyer’s observations and conclusions about the client’s behavior seems to clearly fall within the meaning of disclosures necessary to carry out the representative authority by Rule 1.6 Confidentiality of Information (see ABA Formal Opinion 96-404 Client Under Disability).

Hopefully, after obtaining the medical report, you can complete the client’s estate planning. If the medical report concludes that your client lacks the testamentary capacity to execute estate planning documents, then you will need to consider filing for guardianship.  Hopefully, the doctor has assessed both testamentary capacity and the necessity for guardianship if the client is dramatically impaired.

Rule 1.14 of the ABA Ethics Opinion 96-404 gives us clear direction regarding the attorney obligation when seeking an emergency guardianship for the client’s protection and welfare. If this client is a long-term client of yours, or your law firm’s, be careful in your determination to file guardianship. Can you take adverse action to your client? Please review Rule 1.14(b) above for the important narrow exception created for extreme circumstances. This section is replete with ethical landmines and requires a methodical analysis. If in doubt, consult an ethics attorney. Your decisions are critical to both your client and retaining your law license.
Remember, the aging population raises the likelihood you will have cognitively impaired clients! Be prudent and diligent in these difficult scenarios.

Kerry R. Peck

Kerry R. Peck is the managing partner of the Chicago law firm Peck Ritchey, LLC where he concentrates his practice in Trust and Estate Litigation, Estate Planning/Administration, Guardianship and Fiduciary Litigation, and Elder Law. Mr. Peck is past president of the 22,000-lawyer Chicago Bar Association; is currently a member of the ABA'sCommission on Law and Aging and the Elder Law Section Council of the Illinois Bar Association. Kerry is the principal author of the book "Alzheimer's and the Law," published by the ABA, and is a frequent speaker at continuing education seminars for attorneys and healthcare professionals.