Capacity and Clients: Navigating Ethical Obligations

1. Some Thoughts on Clients and Capacity Rebecca C. Morgan, Esq. Edwin M. Boyer, Esq. Stetson University College of Law Gulfport, Florida

2. Here is Our Problem? • We have an ethical obligation to presume capacity in our relationships with our clients • The reality is that we will have many more clients with diminished capacity than we have ever had • We need to know much more than we know now about diminished capacity • We need to be able to communicate with our clients with diminished capacity in order to meet our Ethical obligation

3. Is There A Rule Of Thumb?

4. Model Rule of Professional Conduct Rule 1.14 • (a) When a clients 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 client lawyer relationship with the client.

5. Model Rule of Professional Conduct Rule 1.14 • (b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the clients own interest.

6. Comments • A client lacking legal competence often has the ability to understand, deliberate on, and reach conclusions about matters affecting the clients own well being • The law recognizes intermediate degrees of competence • Some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions

7. Rule 1.14(2002) • (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

8. Comments to Rule 1.14 • In determining the extent of the clients diminished capacity, the lawyer should consider and balance such factors as: the clients ability to articulate reasoning leading to a decision; variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician

9. ACTEC Commentaries (original rule) • The lawyer generally should not prepare a will…for a client who the lawyer believes lacks the requisite capacity. On the other hand, because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline. In any case the lawyer should take steps to preserve evidence regarding the clients testamentary capacity.

10. THE SLIPPERY SLOPE

11. THE SLIPPERY SLOPE • You have, and you will have a client whose capacity to understand and execute a legal document, complete a legal transaction, or assist you in representation, will be in doubt • Sometimes you have to choose and you may have to defend your choice • You also must be able to communicate with the client

12. Our Clients • 1980 - 1990 over 65 group increased 22% • 2050 – 17.1% of population will be over 65 • 2050 – 5.1% of population will be over 85

13. Our Clients • Prevalence of dementia thought to double every 5 years in the elderly • Affects 1% of persons 60 and over • Affects 45% of persons 85 years old • Most common cause – Alzheimer’s disease accounts for 60% to 70% • One new Alzheimer’s case every 6 seconds

14. WHAT IS DEMENTIA • Dementia is not an illness – it is a group of symptoms that may accompany a variety of diseases or physical conditions • It is a global disturbance of cognitive functioning • More than 50 diseases and conditions result in varying degrees of mental impairment

15. WHAT IS DEMENTIA • “a syndrome characterized by acquired impairment in a least three of five neuropsychological and behavioral domains • 1. memory • 2. language speech • 3. visuospatial ability • 4. cognition (ability to manipulate previously learned information) • 5. mood/personality

16. WHAT IS DEMENTIA • A diagnosis requires that cognitive defect be severe enough to cause impairment in social and occupational functioning • Symptoms can result from a variety of diseases or physical conditions • Conditions result in varying degrees of mental impairment • Manifest at different times many are reversible • The lava lamp theory

17. Common Dementia Causing Diseases and conditions • Alzheimer’s disease • Multi-infarct dementia (stroke) • Parkinson’s disease • Huntington’s disease • Creutzfeldt-Jakob disease • Picks disease • Depression • Anxiety disorders • Closed head injuries

18. Legal vs. Clinical Capacity

19. A LOOK AT LEGAL CAPACITY • Historically – Lawyers deal with situation specific standards • Make a will, gift, contract, make medical decisions

20. LEGAL STANDARDS OF CAPACITY • State specific • Generally a presumption of capacity • Adjudication of incapacity might not prevent meeting the standard – Will? • The legal transaction specific analysis in many cases parallels clinicians evaluation of capacity – “domains”

21. Transaction Specific Analysis • Testamentary Capacity • Contractual Capacity • Donative Capacity • Convey Real Estate • Make a Health Care Decision • Mediate • Drive • Marry • Stand Trial • Vote

22. CAPACITY IN THE GUARDIANSHIP CONTEXT • 60’ Paradigm – underlying medical or mental health diagnosis • 80’s trend – focus on function – underlying diagnosis is important but may not be the basis for a guardianship • New Trend – Cognitive element – “unable to receive or evaluate information, or communicate decisions to meet essential requirements for safety. UGPPA

23. Clinical Models • For Guardianship - The Grisso Model • For Transactional - Domain specific Models • Domain – a cohesive area of cognitive or functional behavior • Consent Capacity • Financial Capacity • Independent Living

24. Conclusion • Whether in the guardianship context or the transactional context - Capacity is a legal determination made by a judge based upon a legal definition with opinions given by professionals

25. These Are Our Standards These Are Our Clients These Are Our Challenges What Do We do

26. The Slippery Slope Again • Do you assess for capacity? • How far do you go is assessing? • Who does the assessment? • What is your liability and to whom? • What are the ethical issues? • But Most important:

27. La Monomane de L’envie Theodore Gericault 1819 How Do We Communicate

28. Communicating With Your Client

29. Factors to Consider • Client’s ability to articulate reasoning underlying a particular decision • Client’s knowledge and appreciation of impact and outcome of decisions • Consistency of client’s professed choices, desires and goals “over time” • Potential impact of external variables on the client’s decision making process (e.g., third parties, financial stressors, physical health) • Nature of the legal task and issue and the adequacy of your presentation

30. Signs/Indicators of Possible Impairment and Diminished Capacity* • Short term memory loss (versus better memory for events of the past) • Language and communication problems • Problems with comprehension of abstract concepts • Lack of cognitive flexibility • Problems with calculation

31. Signs/Indicators of Possible Impairment and Diminished Capacity* • Problems with orientation (space, time, place, person) • Problems with hygiene • Emotional lability and impulsivity • Delusions and hallucinations • *Always try to consider the client’s relative level of functioning as compared to some prior baseline

32. Contributors to Impaired Capacity • Cognitive impairment (e.g., dementia, delirium) • Mental disorders (e.g., depression, psychotic disorders) • Physical disorders • Medication effects • Substance abuse • Impaired sensory functioning • Situational stressors

33. Enhancing Client Capacity • Accommodate sensory changes and limitations • Accommodate cognitive changes and limitations • Foster trust

34. Accommodate Sensory Changes and Limitations • Minimize glare on materials and in room • Minimize background noise • Look at client when speaking and sit close to each • Speak more slowly and more loudly, using a lower pitched voice • Print documents in larger fonts • Provide extra time for reading and review of documents

35. Accommodate Cognitive Changes and Limitations • Adopt a slower pace • Ask non-compound questions, break up materials into smaller segments, and discuss one issue at a time • Verify understanding before moving onto another topic, provide corrective feedback when necessary and then re-assess • Schedule appointments for time of day when client is at his or her best • Provide time for breaks and use multiple shorter appointment rather than longer ones • Consider meeting in the client’s residence

36. Foster Trust • Interview client alone • Stress confidentiality of relationship and fiduciary duty • Paraphrase assessment of client’s desires, goals, and intentions • Never talk about the client when others are in the room • Consider word choices • “person-centric”=focus on what client can do • Complex v. simple; big picture vs. details

37. Communication Tips fromAlzheimer’s Association • Patience • Don’t correct or criticize • Limit distractions • Non-verbals—point to something • Emotions vs. words • https://www.alz.org/care/dementia-communication-tips.asp

38. Stay Balanced