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Understanding and Responding to Client Capacity: An Examination of Revised NAELA Aspirational Standard G

By Professor Gregory T. Holtz

I. Introduction
A treatise on throwing a baseball notes, “Throwing requires the entire body to work together in order to throw the ball accurately and to put something on it.”1 In many ways elder and special needs law attorneys, perhaps without realizing it, engage in a similar function as they represent their clients. Their efforts require unity of purpose and coordination so that the client receives the personalized counsel and protection to which he or she is entitled. Personalized, coordinated counsel ensures that the effort expended on behalf of the client has “something on it” to ensure that the client’s wishes and quality of life are protected, now and into the future.

Understanding and responding to client capacity is crucial to offering a client thoughtful, responsive, and competent representation. Client capacity issues pose unique challenges for elder and special needs law attorneys as they attempt to balance client needs and loyalty with the incessant cacophony of family pressures and perceived societal norms.2 For example, how does the lawyer balance his or her responsibilities to keep the client reasonably informed and to take direction from the client,3 given the lawyer’s concern that, due to the client’s diminished capacity, the client might not fully understand the information being conveyed or the alternatives being presented? What is the lawyer’s responsibility if he or she suspects that a client has diminished capacity and is being abused or financially exploited? How does the lawyer balance such responsibilities with the duty to maintain client confidences? How does a lawyer create unity of purpose and coordination in the face of such challenges? These questions were of primary concern during the preparation of Standard G, Client Capacity, in the revised (2017) edition of the NAELA Aspirational Standards.4 Standard G (Standard E in the 2005 edition) considers the nature of capacity and offers a practical approach suggesting how an attorney should proceed when confronted with a client or prospective client who might have diminished capacity.

The challenges in responding to issues related to capacity began with the Aspirational Standards published in 2005.5 The 2005 Standards considered a variety of elder law issues, including those dealing with client capacity.6 From 2014 to 2017, the 2005 Standards were evaluated and revised by NAELA’s Professionalism and Ethics Committee. Committee members were mindful of changes that have occurred in the elder and special needs law landscape. Accordingly, this article highlights some changes in emphasis that these drafters thought vital as they revised the 2005 NAELA Aspirational Standard related to client capacity and the themes that might have influenced such changes.

II. Analysis and Commentary
The 2017 Standard, Standard G, Client Capacity, emphasizes proactivity through language that promotes action. Words such as “develops,” “adapts,” and “preserves” used in the Standard’s Sections encourage results orientation.7 The drafters offer resources to help attorneys understand what such proactivity might mean in specific circumstances. In that sense, the revised Standard can be viewed as a practice guide, offering an approach to working through challenging issues related to client capacity.

The 2017 Standard affirms the attorney’s responsibility to acknowledge client capacity throughout the representation while emphasizing the client’s right to respect, self-determination, and confidentiality:

Attorneys have special ethical responsibilities when representing clients whose capacity for making decisions may be diminished. Clients with diminished capacity are entitled to respect and attention throughout their representation.8

Although the 2017 Standard continues to use the word “continuum”9 to highlight the ever-changing concept of capacity, the term is complex and laden with nuance.10 Issues regarding capacity can be especially challenging because of their evolving nature.11 The difficulty in determining capacity lies in the realization that a person’s awareness and ability to understand may fluctuate.12 During periods of fluctuating capacity, an individual will often have “windows of lucidity,” during which the individual may be capable of making a legally binding decision.13

Due to the elastic nature of capacity, Standard G offers a framework to assist the attorney. For example, elder and special needs law attorneys should create an environment that acknowledges “the client’s capacity and circumstances”14 and responds to specific situations in which diminishing capacity could impact the client. Lawyers should respect the client’s family, social connections, and client confidences.15 Standard G, Section 3, recommends that the attorney “be proactive and creative, using strategies and techniques that suit the client’s current physical, emotional, and mental abilities.”16 Understanding this subtle change in focus helps the elder and special needs law attorney achieve a unity of purpose and coordination throughout client capacity analysis.

In support of this theme, Standard G, Section 1, stresses client self-determination and confidentiality. It makes clear that “[i]f the client’s diminishing or changing capacity results in the need for increasing levels of assistance, preservation of the client’s right to self-determination and confidentiality remain. The attorney should provide the client with a clear explanation of the risks and consequences of the involvement of other parties.”17 The Standard states that the elder and special needs law attorney must acknowledge and act upon an obligation that has always been running in the background, namely, developing strategies and skills that address client capacity while maximizing client autonomy.

Consider a lawyer who is thinking about representing an elderly client who seems unfocused. This situation, often encountered in elder and special needs law practice, highlights a reaction that the 2017 Standard urges elder and special needs law attorneys to rethink. The lawyer might act on his or her initial inclination to decline representation. This decision might be based on a concern of determining capacity and the concomitant responsibility to develop a reasoned practice result on behalf of the client. Making the decision to decline representation might be especially tempting for a lawyer with a heavy workload. And such a decision, while understandable, might result in the elderly potential client not receiving helpful counsel. The 2017 Standard responds to such a reaction by presuming capacity:

Attorneys should presume capacity until the facts and circumstances override that presumption. … A number of different methods may be used to evaluate the client’s decision-making abilities.18

The 2017 Standard suggests that, as a predicate to representation, the lawyer adapt “consistent” and “deliberate” measures to ensure that the client has the capacity to proceed. The Standard emphasizes the attorney’s continuing responsibility to protect the client, especially if the attorney believes that the client “(a) has diminished capacity; (b) is at risk of substantial physical, financial, or other harm unless action is taken; and (c) cannot adequately act in his or her own interest.”19 This approach represents an important revisit of when protective action is warranted:

The fact that a client has diminished capacity does not necessarily mean that the protective action is warranted. The client also must be incapable of protecting himself or herself and be at substantial risk if the attorney does not act. The attorney must determine whether the attorney’s ability to continue to advocate for the client and the client’s wishes and values has become impossible because of the client’s impairment and whether the client is at serious risk of harm.20

Even though determining client capacity is important in all areas of law practice, the nature of elder and special needs law creates a climate in which capacity assessment should be uniformly provided. To help achieve this goal, Standard G directs practitioners to several resources that may assist in effecting such representation.21 Scholarship in this area has long affirmed the attorney’s role in determining capacity.22 The Standard urges the elder and special needs law practitioner to incorporate a nuanced capacity analysis into day-to-day practice.

What happens, however, if a client capacity issue requires some level of protective action? The 2017 Standard leads with the parameters set forth by the American Bar Association (ABA) Model Rules. Model Rule 1.14 states:

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.23

Standard G acknowledges the variety of approaches adopted under state law to address suspected elder abuse or exploitation. For example, some jurisdictions impose mandatory reporting requirements in cases of elder abuse or exploitation.24 Lawyers are urged to “carefully consider the impact of protective action” and determine whether their “ability to continue to advocate for the client and the client’s wishes and values has become impossible” because of the client’s diminished capacity.25

Consider this Example in Standard G:

An attorney is approached by a 22-year-old client to discuss his special needs trust, which was created 5 years ago by another attorney with funds derived from a personal injury judgment. The client now desires to control the money himself and “play the market.” He asks the attorney to help him dissolve the trust. The attorney is concerned about the impact such a decision could have on the client’s eligibility for continuing and future public benefits. In addition, as the attorney discusses this matter, it becomes clear that the client has diminished capacity and could be at risk of substantial financial harm if the trust is dissolved.26

The Example offers an instructive approach to this situation, suggesting that the lawyer “consider ways to help the client achieve independence without incurring financial harm.”27 Such actions might include involving a trustee or financial adviser. They might include introducing allied professionals to help develop an appropriate strategy for the client. Conversations might require analysis of cash flow, asset allocation, and investment policy — areas beyond the scope of the traditional practice of law.

Actions such as these underscore what is meant by working together in understanding and responding to a client’s capacity. The attorney should think beyond legal doctrine and focus on protecting the client when capacity is at issue. This includes acknowledging that other individuals and perhaps professionals may be able to offer assistance. Elder and special needs law attorneys should not hesitate to use such resources. It is no coincidence that the 2017 Aspirational Standards begin with Holistic Approach (Standard A). Standard A, Section 1, observes, “While elder and special needs law includes traditional estate planning, many times the focus of an elder or special needs law representation is the ‘life needs’ of the person whose interests are being promoted in the legal representation.”28 Thoughtful capacity analysis requires an understanding of what working together means in the context of such a holistic approach.

Standard G also considers capacity in the context of two core principles of the attorney-client relationship, namely, the duties of loyalty and confidentiality. If a client has diminished capacity and requires protection, the lawyer may need to disclose confidential information to a third party. The Standard offers helpful guidance, focusing on how the information might be used and limiting the scope of disclosure:

The attorney must seriously consider whether the individuals or entities to whom confidential information is disclosed will use that information against the client’s interests. Even if the attorney is authorized to divulge confidential information to take protective action, the attorney may disclose only that information necessary for the protective action.29

Standard G acknowledges that elder and special needs law attorneys must sometimes navigate a gray area in which no clear-cut answers exist. For example, many state bar rules provide for limited disclosure of confidential information. Those disclosures must be made with care because of the potential harm to the client.30

Another Example in Standard G highlights the challenges facing the elder and special needs law attorney in this gray area:

An attorney has represented a client for a number of years on various matters, including estate planning. The client has previously involved her son and daughter in meetings with the attorney. The client brings in a recent bank statement to complain about nonsufficient funds (NSF) check charges. The attorney notices large repetitive checks written to the client’s housekeeper. When questioned by the attorney, the client seems confused and has no explanation for the transactions.31

The Example presents some options that may be appropriate to protect the client’s interests and respond to what might be the client’s diminishing capacity.

Initially, and presuming the client has provided consent, the lawyer may contact the son and daughter and discuss the problem with them. The Example refers to this action as among other “least restrictive protective actions.”32 But what if the client has appointed her son attorney-in-fact under a durable power of attorney, the checks are written to the son, and the son signs as agent? Does the lawyer’s responsibility change if the son tells the lawyer that if he or she receives a call from the client about NSF checks, the lawyer should disregard the call because the client is “just imagining things?”

The 2017 Standard suggests that the answer is “yes” and that the lawyer’s responsibilities must evolve as the client’s well-being becomes more imperiled. How such change becomes incorporated into the practice setting is one of the complex and nuanced gray areas. There is no set answer except that the change must be accomplished. The lawyer’s read on his or her client, surrounding circumstances, and influences will all factor into determining an appropriate course of action. Once again, the Standard suggests a proactive approach in addressing these issues.

Understanding what the term “proactivity” means in this context becomes clearer when comparing the 2005 Standard with the 2017 Standard. The 2005 Standard stated that client confidences may be disclosed “only when essential to taking protective action and to the extent necessary to accomplish the intended protective action.”33 The 2017 Standard suggests in contrast that the lawyer should “[take] actions to help prevent current and future financial exploitation, abuse, and neglect of the client.”34 The 2017 Standard removes any qualifier and suggests that action be taken to prevent harm to the client. The Standard offers additional guidance, again encouraging a proactive approach to protect the client:

Attorneys should make an effort to be educated and trained in detecting and preventing exploitation, abuse, and neglect. Attorneys should recommend to the client the use of planning measures in the representation that will minimize the risk of exploitation, abuse, and neglect, including the education of the client and family members on the risks.35

The training and education referred to contemplates knowledge and sensitivity in areas that supplement doctrinal law. Standard A, Holistic Approach, encourages a focus on life needs. Standard A presents these life needs, which include the following: access to high-quality health care and long-term care services; advocacy for independence and autonomy and accessibility to accommodate special needs; access to education and training for those who have special needs; planning to minimize conflicts and for end-of-life care; and protection from exploitation, abuse, and neglect.36 Training and education complement the lawyer’s doctrinal knowledge so that he or she is best equipped to address capacity issues. In this sense, the revised NAELA Aspirational Standards represent an opportunity to provide a new, customized level of representation to clients.

There will, however, be situations that require the most drastic protective action, namely, guardianship. While guardianship and its administration have undergone change not only in this country but globally,37 such action still undermines client confidentiality and should be viewed as a last resort. The 2005 Standard suggested that “[w]hen guardianship is the last resort, the attorney should consider seeking a limited guardianship tailored to the client’s needs. The attorney should ensure that guardianship is in the client’s best interests and less restrictive alternatives are inadequate.”38 The 2005 Standard also suggested guardianship when all possible alternatives will not work.39

In contrast, the 2017 Standard suggests guardianship only when no other viable alternatives exist.40 Guardianship is viewed as a “last resort.” It is used only if the elder and special needs law attorney believes it is necessary to protect the client’s safety. The 2017 Standard suggests that the attorney consider the client’s wishes and values as well as a guardianship’s impact on the client’s family and social relationships. These considerations promote the client’s life needs and attempt to the extent possible to impose guardianship only when consistent with the client’s goals and values.41

III. Conclusion
It has been suggested that “[t]he difference between the impossible and the possible lies in a [person’s] determination.”42 This statement seems particularly relevant in evaluating client capacity because when an elder and special needs law attorney strives to understand and respond to a client’s capacity, he or she is focusing on protecting the client’s dignity. The 2017 NAELA Aspirational Standards understand client dignity and the unique bond NAELA members have with their clients.

This bond is eloquently discussed in the Preamble to the 2017 Aspirational Standards, quoting Clifton Kruse, past NAELA president and member of the NAELA Professionalism and Ethics Committee when the 2005 Standards were drafted:

The legal answers are comparatively easy — the job we are called in to do is done — but along the way, the more important, the more valuable service occurs as well. We listen. We invite a monologue. We establish this by our demeanor and by our questions that invite unloading — and in the process we extend the joy that elders’ memories bring. And on those days, we earn the accolade — professional — one who serves others.43

The 2017 NAELA Aspirational Standards encourage elder and special needs law attorneys to take the special bond they have with their clients and their responsibilities to a new level. Standard G, Client Capacity, encourages us to “throw the baseball” when assessing capacity, first by understanding the unique and ever-evolving nature of client capacity and then adopting creative, holistic strategies to meet our clients’ needs.

This approach to elder and special needs law goes beyond the application of doctrinal law. That is the challenge that Standard G, Client Capacity, and the rest of the 2017 NAELA Aspirational Standards invite us to embrace.

2 See Stuart D. Zimring, Ethical Issues in Representing Seniors, Persons With Disabilities and Their Families, 4 NAELA J. 125 (2008).

3 See e.g. Model R. Prof. Conduct 1.2(a), 1.4, and Comments thereto (ABA 2016).

4 Aspirational Standards for the Practice of Elder and Special Needs Law With Commentaries (2nd ed., NAELA 2017).

5 Aspirational Standards for the Practice of Elder Law With Commentaries (1st ed., NAELA 2005).

6 Id.

7 NAELA Aspirational Stand. G.

8 Id.

9 The 2005 Standard noted, “Capacity exists on a continuum, and is normally not an all-or-nothing proposition. Clients may have the ability to make some decisions but not others.” The 2017 Standard introduces a slightly different theme by emphasizing, “It is therefore important that attorneys understand that capacity exists on a continuum … .” (emphasis added).

10 The 2017 Standard states, “Throughout the representation, the attorney should adopt strategies to improve and preserve the comprehension and decision-making ability of the client with diminished capacity.”

11 Daniel L. Bray & Michael D. Easley, Dealing With the Mentally Incapacitated Client: The Ethical Issues Facing the Attorney, 35 Fam. L. Q. 329, 335 (1999).

12 Id.

13 Id.

14 NAELA Aspirational Stand. G.

15 Id.

16 Id. at § 3 cmt.

17 Id. at § 1 cmt.

18 Id. at § 2 cmt. ex.

19 Id. at § 4.

20 Id. at § 4 cmt.

21 See ABA Commn. on L. & Aging, Am. Psychol. Assn., Assessment of Older Adults With Diminished Capacity: A Handbook for Lawyers (2005); Bruce A. Green & Nancy Coleman, Foreword, Special Issue: Ethical Issues in Representing Older Clients, 62 Fordham L. Rev. 961 (1994); Model R. Prof. Conduct 1.14 cmt. 6.

22 Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, Utah L. Rev. (no. 3) 515, 516 (1987) notes: “The ideology of informed consent asserts that lawyers may act only, or primarily, on the direction of their clients. Lawyers serve, in this fundamental sense, as agents of their clients. The supposition that lawyers know what is best for their clients is no longer accepted as it may have been in the past; instead, the profession has grown in the realization that the most effective lawyering decisions are made by the clients themselves.”

23 Model R. Prof. Conduct 1.14(b); see also David A. Green, “I’m OK–You’re OK”: Educating Lawyers to “Maintain a Normal Client-Lawyer Relationship” With a Client With a Mental Disability, 28 J. Leg. Prof. 65 (2004).

24 NAELA Aspirational Stand. G § 4 cmt.

25 Id.; see also Model R. Prof. Conduct 1.14.

26 NAELA Aspirational Stand. G § 5 cmt. ex. 2.

27 Id.

28 Id. at Stand. A § 1 cmt.

29 Id. at Stand. G § 6 cmt.

30 See id.

31 Id. at ex. 1.

32 Id.

33 NAELA Aspirational Stand. E (2005).

34 NAELA Aspirational Stand. G § 6 (2017).

35 Id. at cmt.

36 Id. at Stand. A § 1 cmt.

37 See generally Charles P. Golbert, Book Review: Taking the Issues Global — Review of Adult Guardianship Law for the 21st Century: Proceedings of the First World Congress on Adult Guardianship Law 2010, 10 NAELA J. 229 (2014).

38 NAELA Aspirational Stand. E § 7 cmt. (2005).

39 Id.

40 NAELA Aspirational Stand. G (2017).

41 Supra n. 22.

42 BrainyQuote, Tommy Lasorda Quotes, (accessed Oct. 15, 2018).

43 NAELA Aspirational Stands. Preamble.

About the Author
The late Gregory T. Holtz was a visiting clinical professor of law at Ave Maria School of Law, Naples, Florida. This issue of NAELA Journal is dedicated to Professor Holtz, who died on June 30, 2018. Professor Holtz had a strong desire to use his legal knowledge and skills to help people who were less fortunate. In 2015, he earned the Florida Bar Association Tobias Simon Pro Bono Service Award for his extensive pro bono work. Through his energetic commitment and benevolent focus, Professor Holtz made a difference in the lives of his clients, many of whom were insecure economically. He proudly represented and advised all of his clients. Professor Holtz was a member of the NAELA Journal Editorial Board from 2015–2018. He gratefully acknowledged Charles P. Golbert, Acting Public Guardian, Cook County, Illinois, for his contribution to this article and the research assistance of his staff.