December 2017

Suspect a client with cognitive impairment? What’s next

There are now more than 50 million seniors living in the United States and that number is expected to climb to more than 83 million by 2050, according to the U.S. census.

The aging population raises the likelihood you will encounter cognitively impaired clients, and elder law attorney Kerry R. Peck says that it takes prudence and diligence when representing these individuals.

In a recent issue of Voice of Experience, published by the ABA Senior Lawyers Division, Peck shares the ethical challenges and responsibilities that lawyers should mind when representing clients with diminished mental capacity.

Managing partner of the Chicago law firm Peck Ritchey, LLC, and co-author of the ABA-published book “Alzheimer’s and the Law,” Peck says that lawyers should first assess a client’s testamentary capacity if they suspect cognitive decline.

An informal discussion of current events can yield enough insight to determine mental status. “Is the client aware of recent international conflicts? Is the client aware of major local events?” Peck asks, noting that this informal evaluation might also include questions such as – Who is the president of the United States? What’s the month and year? And, where do you reside, and with whom?

Even if the client is diagnosed with early or mild Alzheimer’s, if he or she passes “with flying colors, you are good to go.”

But – if clients cannot answer basic orientation questions or has been diagnosed with moderate- or severe-stage Alzheimer’s, an evaluation by a capable doctor is in order.

The physician should be advised of the purpose of the exam and how it will be used. “‘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,” says Peck, recommending that lawyers also consult ABA Formal Opinion 96-404 Client Under Disability.

“If the medical report concludes that your client lacks testamentary capacity…then you will need to consider filing for guardianship,” says Peck.  He advises that lawyers consult Rule 1.14 of ABA Ethics Opinion 96-404 for direction.

If the client is a long-term one, Peck says to be careful in your determination to file guardianship. “Can you take adverse action to your client? Please review Rule 1.14(b) for the important narrow exception created for extreme circumstances. “

See “Ethical Challenges and Responsibilities When Working with Clients with Diminished Capacity” for more. 

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