Working with clients in various stages of Alzheimer’s or dementia, and with their families and caregivers, poses unique ethical issues for the attorney. Alzheimer’s is the most common cause of dementia, which involves memory loss and other cognitive impairment that affects daily life. When clients suffer from a mental impairment, this generally reduces their capacity to communicate with their lawyer, understand critical issues related to representation, and make informed decisions.
Here are key ethics rules to consider when your older adult client (or potential client) has diminished capacity:
Rule 1.1, Competence
A lawyer shall provide competent representation, i.e. legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Rule 1.1, Comment 2 states, “Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.”(emphasis added).
When working with a client with diminished capacity, lawyers not only need to know the nuts and bolt of their practice area. They also have to apply the legal standards of diminished capacity, which include ethical guidelines for assessing client capacity, as outlined in Rule 1.14, and standards of capacity for specific legal transactions.
A finding of incapacity could nullify or present obstacles in transactions such as wills, contracts and estate plans.
For example, at the time of making a will, the testator must understand the nature and extent of his property and the claims of others on his bounty, and be able to connect them sufficiently to form a rational plan for disposition of property. This is known as Testamentary Capacity.
When entering a contract, the person needs to understand the nature and effect of the act and the business being transacted. If the act of business being transacted is highly complicated, a higher level of understanding is usually needed. This is called Contractual Capacity.
Rule 1.2, Scope of Representation and Allocation of Authority Between Client and Lawyer
A lawyer has a duty to abide by the client’s decisions concerning the objectives or goals of representation and reasonably consult with the client about the means to accomplish such objectives. When a client lacks capacity to fully participate in the representation, this creates multiple ethical issues.
Rule 1.2, Comment 1 states the client has ultimate authority to determine the purpose and objectives of the representation. The means by which to accomplish objectives is generally left to counsel, after consultation with the client. Comment 2 adds that when there is a disagreement, counsel must attempt a mutually agreeable resolution. “If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4).”
Rule 1.4, Communication
Rule 1.14(a)(1) states the lawyer shall promptly inform client of any decision or circumstance with respect to which client’s informed consent is required.
Rule 1.4(a)(2) requires the lawyer to reasonably consult with client about the means by which the client’s objectives are to be accomplished.
Rule 1.4(b) notes the lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation.
Comment 6 states, “Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult.” But “this standard may be impracticable” when the client suffers from diminished capacity.
In any event, the lawyer should confirm the client understands key elements of legal action and available options, and the client has made a choice and understands the consequences.
Rule 1.7, Conflict of Interest: Current Clients
The lawyer needs to watch out for conflicts of interest, particular in joint representation of married couples in wills and trusts formation, estate planning, contracts and other similar matters.
The lawyer shall not represent a client if representation involves a concurrent conflict of interest.
Concurrent conflict of interest exists if representation will be:
(1) directly adverse to another client, or
(2) materially limited by responsibilities to another client, former client, or a third person, or from lawyer’s own interests.
Comment 1 states that loyalty and independent judgment are essential in attorney-client relationship. Comment 2 explains that to resolve a conflict of interest problem, the attorney must clearly identify the client(s) and decide whether representation may continue and, if so, consult with affected client(s) and obtain informed consent in writing.
Rule 1.16, Declining or Terminating Representation
Rule 1.16(b)(1) states the attorney may withdraw from representing a client if it can be “accomplished without material adverse effect on the interests of the client.”
Rule 1.16(c) states the lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. A tribunal may order the lawyer to continue representation despite good cause for termination.
Comment 1 explains the lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. In effect, if the lawyer reasonably believes the person lacks capacity to make informed decisions, he may decline representation without necessarily seeking reasonable protective action.
Comment 6 adds that before representation is withdrawn, the lawyer should make special effort to help the client — with severely diminished capacity — consider the consequences of a discharge and may take reasonably necessary protective action as provided in Rule 1.14.
Rule 1.14, Client with Diminished Capacity
Rule 1.14(a) states the lawyer must maintain a normal client-lawyer relationship, as far as reasonably possible, even with the client has diminished capacity.
Comment 1 notes, “The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters.” It adds that when the client “suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects.”
Rule 1.14(b) allows the lawyer to take reasonable protection action when the lawyer reasonably believes the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken, and cannot adequately act in his/her own interest.
Comment 5 specifies that protective action includes consulting with family members; using a reconsideration period to permit clarification or improved circumstances; using durable powers of attorney; and consulting with support groups, professional services, adult-protective agencies, or other persons and entities available to protect the client.
In certain situations, the lawyer may seek guidance from an appropriate diagnostician. Protective action may involve seeking assistance from third parties in determining whether to seek the appointment of a guardian ad litem, conservator or guardian.
Rule 1.14(c) states the lawyer may reveal confidential information (protected by Rule 1.6) to the extent reasonably necessary to protect the client’s interest, when taking reasonably necessary protective action.
Comment 6 states, “In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: 1) the client’s ability to articulate reasoning leading to a decision; 2) variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and 3) the consistency of a decision with the known long-term commitments and values of the client.
Undue influence from a family member, caregiver or other third party should not be confused with diminished capacity, although the two are sometimes intertwined. Through manipulation or isolation, a stronger person might convince the weaker person to do something he would not otherwise do without the undue influence. This is a major factor for financial exploitation that the lawyer needs to consider when working with elderly clients with diminished capacity.
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Most lawyers – especially without special training — will find it very difficult to determine whether a client with diminished capacity can still make “adequately considered decisions.” Rule 1.14(b) subjects the lawyer to the standard of reasonableness and requires only that the lawyer “reasonably believes” the client has diminished capacity, which may be inferred from the circumstances.
As part of the normal attorney-client relationship, lawyers may not substitute their opinion or judgment for that of their clients, even when the client has diminished capacity due to mental impairment (e.g. Alzheimer’s or dementia). In appropriate situations, lawyers may consult with a medical or mental health diagnostician or other professional for help in evaluating a client’s capacity to act in his or her own interest. They may disclose only enough information reasonably necessary to take contemplated protective action in cases where the client is at risk of substantial harm.
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NOTE: On Monday, February 3, 2020, I will co-present the ethics session at Minnesota CLE’s live in-person seminar, A Lawyer’s Guide to Alzheimer’s and Dementia. Wills & Estate Planning attorney, Stuart Bear of Chestnut Cambronne P.A., and I will discuss Ethical Issues for Attorneys: How to Avoid the Pitfalls of Competency, Conflicts, and More.
To register or learn more, click HERE.
This article provides general information only. Do not consider it as legal advice for any individual case or situation.
The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance.