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.  It is therefore important that attorneys understand that capacity exists on a continuum, and is normally not an all-or-nothing proposition. If 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.  Throughout the representation, the attorney should adopt strategies to improve and preserve the comprehension and decision-making ability of the client with diminished capacity.   For example, if a third party is present for support, the attorney should continue to communicate directly with the client, including the third party only as the client authorizes (See Standard E. Confidentiality, Section 4).   Moreover, even if the client has authorized or instructed the attorney to communicate with a third party, the attorney still should keep the client informed either by providing the client with copies of communications or by speaking directly with the client.

Attorneys often represent clients who have some degree of diminished capacity. The attorney should develop strategies and skills to understand and communicate with such clients by using a variety of interviewing techniques. (See Standard G. Client Capacity, Section 3, for specific suggestions). 

The law recognizes different thresholds for capacity depending on the task to be undertaken. Capacity is task-specific, and because different tasks require different degrees of capacity, the client may have sufficient capacity to perform some tasks but not others. For example, a higher threshold of capacity may be required to make a contract, especially a complex contract, than to make a will.  Hence, the attorney needs to determine whether the client has sufficient capacity to perform the task.

Client visits attorney to draft a new will and health care directive. During the interview, attorney notices that client seems unfocused and wanders from topic to topic.  Attorney believes that client understands to whom he wants his property to go at his death, but seems confused about the meaning of the health care directive. Attorney should ask additional questions to determine whether client understands the health care directive. If attorney has concerns about client’s capacity, attorney may still decide to draft both documents and resolve prior to their execution whether client understands the documents at the time client signs them.

Attorneys should presume capacity until the facts and circumstances override that presumption. When capacity is questionable, the attorney should follow a consistent and deliberate process to preliminarily screen clients for capacity. The attorney should document the observations that support the attorney’s conclusion that the client does or does not have capacity. A number of different methods may be used to evaluate the client’s decision-making abilities. The attorney’s screening and evaluation process should be followed and documented in every file. (See Assessment of Older Adults With Diminished Capacity: A Handbook for Lawyers.)

Although the attorney should consider any medical opinions regarding the client’s capacity, the attorney should evaluate client capacity by a legal standard, considering factors such as:

• The variability of the client’s state of mind;
• The client’s ability to appreciate the consequences of his or her decision;
• The irreversibility of the decision;
• The substantive fairness of the decision;
• The consistency of the decision with lifetime commitments of the client;
• The type of decisions to be made by the client and the applicable legal standard; and
• The client’s ability to articulate reasoning behind his or her decision.

(See "Special Issue: Ethical Issues in Representing Older Clients," and ABA Model Rule 1.14: Client With Diminished Capacity, Comment 6.)

The attorney should ask the client questions specific to the task to be undertaken to evaluate the aforementioned factors with regard to that task. For example, if the client is seeking a durable power of attorney, the attorney should ask questions about the person the client has selected as attorney-in-fact and why such selection was made. The attorney could ask the client to talk about his or her relationship with that person, including how long the client has known that person and what the client knows about that person’s financial situation. The attorney also might ask hypothetical questions about specific decisions the attorney-in-fact might make for the client and whether the client wants that person to have that decision-making power.

The attorney also should distinguish between incapacity and the inability to remember. The fact that a client does not remember a decision does not mean that the client did not have the capacity to make the decision at the time it was made.

Elder law and special needs law attorneys should develop strategies and skills to understand and communicate with their clients by using different interview techniques and strategies. The attorney should be proactive and creative, using strategies and techniques that suit the client’s current physical and mental abilities.  The following is a nonexhaustive list of interviewing techniques and strategies: 

• Changing the time and location of the meetings;
• Conducting the interview in the client’s home or at a time of day the client is most alert;
• Conducting gradual counseling (a series of shorter interviews over a period of time);
• Varying communication styles;
• Using appropriate visual aids and hearing enhancements;
• Conducting the interview in the client’s primary language or with an interpreter of that language; and
• Providing other reasonable accommodations requested by the client.  

The aforementioned three factors are reflected in the ABA Model Rules, (see Model Rule 1.14: Client With Diminished Capacity) however, state laws vary significantly regarding permitted protective actions (see Stetson University College of Law, "Mandatory Reporting Statutes of Elder Abuse in the United States and U.S. Territories"). Attorneys must have a clear and thorough understanding of the responsibilities and restrictions placed on them by the law and rules in their state.  For example, some states place a mandatory reporting requirement on attorneys who learn of elder abuse or exploitation.  

The fact that a client has diminished capacity does not necessarily mean that protective action is warranted. The client also must be at substantial risk if the attorney does not act and be incapable of protecting herself.  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.  If possible, the attorney initially should attempt to support the client to make decisions that protect the client from the perceived harm.  For example, if the client is in need of support to handle finances, the attorney should help the client implement a mechanism, such as a trust or power of attorney arrangement, to handle finances before the attorney takes protective action without the knowledge or consent of the client.   

In appropriate situations, and when permitted or mandated by state law, the attorney should take protective action.  However, the attorney should carefully consider the impact of protective action on the client-attorney relationship, the client’s autonomy and well-being, and the client’s relationship with third parties.

When the attorney is aware of the client’s expressed wishes, any protective action should be consistent with those expressed wishes. However, when a client has diminished capacity and the attorney does not know the client’s wishes, the attorney should act in accordance with the client’s values.  

When the attorney is representing a client with diminished capacity and is unable to determine the client’s particular wishes and values, the attorney must advocate for the client’s best interests. (See UPC Substituted Judgment/Best Interest Standard for Guardian Decisions: A Proposal for Reform).

In determining what is in the client’s best interests, the attorney should consider the client’s rights, remedies, and economic interests and the extent to which the attorney can preserve the client’s self-determination while still protecting the client. 

Attorneys should be aware of the potential conflict between the client’s best interests and the attorney’s duty to advocate for the client’s wishes (e.g., when the client wishes to age in place and it is in the client’s best interests to be placed in long-term care).  This conflict often occurs when the client has diminished capacity and needs protection, thus requiring the attorney to choose between advocating for the client’s wishes or acting against those wishes in order to protect the client.  Determining the appropriate protective action for the client is very specific and requires the balancing of a number of factors and the use of sound legal judgment. Attorneys may consider including as part of the engagement process an acknowledgment or consent provision allowing the attorney to take protective action under specified circumstances allowed or required by state law. 

The attorney should consider several factors, including the type of representation sought by the client, the forum in which the attorney’s services are to be provided, and the involvement of other parties.  Ultimately, the attorney should balance the client’s need for decision-making assistance with the client’s other interests. These other interests include the client’s autonomy, safety, independence, financial well-being, health, and personal liberty. The decision should not be merely what the attorney thinks is best or would do himself or herself. There is no bright line rule, and as Model Rule 1.14: Client With Diminished Capacity acknowledges, the “lawyer’s position in such cases is an unavoidably difficult one.”

The client’s family, social, and community networks may contribute information about alternatives to protective action.  Having support networks that are geographically close to the client may also provide a level of protection for the client and result in a least restrictive intervention. 

When taking protective action, the attorney should do no more than necessary to protect the client.  Any protective action should be the least restrictive alternative, tailored to the degree of the client’s incapacity and, if possible, reflect the wishes and values of the client as well as the client’s best interests. A number of protective actions may be more effective, less restrictive, and less intrusive than court proceedings or adult protective services.  Protective actions may include a cooling-off period, family involvement, and the creation and use of planning documents. (See Model Rule 1.14: Client With Diminished Capacity, Comment 5.)

Example 1:  A 79-year-old client has begun to decline and appears somewhat confused.  In their past several meetings, the attorney noticed that she had fresh bruises, which the client said were from falling.  The attorney concludes that some kind of protective action is needed.  The client is estranged from her son and has not notified him about her problems.  She is very close to a group of women at her church, and her church may be able to provide support.  To the extent possible, the attorney should discuss with the client different protective alternatives that take into account her son, friends, and church. Any additional protective action without the consent of the client must be consistent with the attorney’s state law and rules. 

Example 2:  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.  In this situation, the attorney should consider ways to help the client achieve independence without incurring financial harm. For example, if the attorney determines that the client has capacity, the attorney might suggest meeting with the trustee and, if one has been appointed, the investment advisor. The meeting would allow the client to discuss any concerns he has with the trust’s investment policy.  Concurrently, the attorney should review the trust and consider potential strategies to appoint a successor trustee.  Finally, the attorney should assess the possible need for a guardian ad litem if court action becomes appropriate. 

The core principles of the attorney-client relationship are the duties of loyalty and confidentiality.  Yet if the client suffers from diminished capacity and needs protection, the attorney may need to disclose confidential information to a third party.  Many state bar rules provide for limited disclosure; however, such disclosures must be made with care because of the potential of harm to the client (see Model Rule 1.6: Confidentiality of Information and 1.14: Client With Diminished Capacity.) 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 where the attorney is authorized to divulge confidential information to take protective action, the attorney may disclose only that information necessary for the protective action. The type of protective action will dictate the nature and amount of information that needs to be disclosed (See Standard E. Confidentiality, Section 6).

The most drastic protective action, seeking the appointment of a guardian or conservator, may be appropriate in certain cases.  However, since such action undermines client confidentiality and may pose a direct conflict with the client, least restrictive alternatives should be considered and pursued first.  Any disclosure, even limited, can have serious negative consequences for the client and should be taken only after other alternatives have been considered or tried without success. 

Example 1.  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 non-sufficient funds (NSF) check charges.  The attorney notices large repetitive checks written to the client’s housekeeper.   Upon questioning by the attorney, the client seems confused and has no explanation.  The attorney may call the son or daughter to alert them to the problem, if the client has previously consented or if state law or rule permits protective action.  Another protective action permitted in some states allows the attorney to file a request for an investigation with the local Adult Protective Services (APS) office.  An APS inquiry should be considered only if all less restrictive protective actions have been considered.

Example 2:  In a situation similar to Example 1, the son is appointed as the client’s financial agent under a durable power of attorney (POA) and the repetitive checks are written to the son with the son signing as agent.  The attorney may request the client’s consent to discuss these checks with the son to determine whether there is a reasonable explanation and, if not, alert the client’s daughter and/or file an inquiry with APS. (See discussion under Standard #3 Section E Confidentiality concerning the benefit to include in the retainer agreement the names of people to whom the attorney may disclose information under circumstances specified in the agreement). 

Example 3:  Prior to the client in Example 1 contacting the attorney, the attorney receives a call from the son who states that the client may call complaining about NSF checks.  The son says that, acting as his mother’s agent under the financial POA, he is instructing the attorney to disregard the complaint because the mother is “just imagining” things. If the attorney doubts the son’s honesty and truthfulness, the attorney should contact the client and may request documentation from the son to support the son’s claim.  If the son fails to provide adequate documentation, or the attorney continues to be concerned after speaking with the client, the attorney may alert the client’s daughter and/or file an inquiry with APS.

Guardianship and conservatorship are actions of last resort. If guardianship or conservatorship becomes necessary to protect the client’s safety, well-being, or finances, the attorney still should pursue the least restrictive alternative in the protective proceedings (see Model Rule: 1.14: Client With Diminished Capacity, Comment 5). Prior to choosing a course of action, consideration should be given to the client’s wishes and values to the extent known; the consequences of intruding into the client’s decision-making autonomy; and the potential impact on the client’s family and social relationships.