Some Thoughts on

Clients and Capacity

Rebecca C. Morgan, Esq.

Edwin M. Boyer, Esq.

Stetson University

College of Law

Gulfport, Florida

Here is Our Problem?Here is Our Problem? We have an ethical obligation to We have an ethical obligation to presume presume

capacitycapacity in our relationships with our clients in our relationships with our clients The reality is that we will have The reality is that we will have many more many more

clients with diminished capacity clients with diminished capacity than we than we have ever hadhave ever had

We We need to know much more need to know much more than we than we know now about diminished capacityknow now about diminished capacity

We need to be able to We need to be able to communicatecommunicate with our with our clients with diminished capacity in order to clients with diminished capacity in order to meet our Ethical obligationmeet our Ethical obligation

Is There A Rule Of Thumb?

Model Rule of Professional Model Rule of Professional Conduct Rule 1.14Conduct Rule 1.14

(a) When a clients ability to make (a) When a clients ability to make adequately considered decisions in adequately considered decisions in connection with the representation is connection with the representation is impaired whether because of impaired whether because of minority, mental disability or for minority, mental disability or for some other reason, the lawyer shall, some other reason, the lawyer shall, as far as reasonably possible, as far as reasonably possible, maintain a maintain a normal client lawyer normal client lawyer relationshiprelationship with the client. with the client.

Model Rule of Professional Model Rule of Professional Conduct Rule 1.14Conduct Rule 1.14

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

CommentsComments

A client lacking legal competence often A client lacking legal competence often has the ability to understand, deliberate has the ability to understand, deliberate on, and reach conclusions about matters on, and reach conclusions about matters affecting the clients own well beingaffecting the clients own well being

The law recognizes intermediate degrees The law recognizes intermediate degrees of competenceof competence

Some persons of advanced age can be Some persons of advanced age can be quite capable of handling routine financial quite capable of handling routine financial matters while needing special legal matters while needing special legal protection concerning major transactionsprotection concerning major transactions

Rule 1.14(2002)Rule 1.14(2002)

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

Comments to Rule 1.14Comments to Rule 1.14

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

ACTEC Commentaries (original ACTEC Commentaries (original rule)rule)

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

THE SLIPPERY SLOPETHE SLIPPERY SLOPE

THE SLIPPERY SLOPETHE SLIPPERY SLOPE

You have, and you will have a client You have, and you will have a client whose capacity to understand and whose capacity to understand and execute a legal document, complete execute a legal document, complete a legal transaction, or assist you in a legal transaction, or assist you in representation, will be in doubtrepresentation, will be in doubt

Sometimes you have to choose and Sometimes you have to choose and you may have to defend your choiceyou may have to defend your choice

You also must be able to You also must be able to communicate with the clientcommunicate with the client

Our ClientsOur Clients

1980 - 1990 over 65 group 1980 - 1990 over 65 group increased 22%increased 22%

2050 – 17.1% of population 2050 – 17.1% of population will be over 65will be over 65

2050 – 5.1% of population will 2050 – 5.1% of population will be over 85be over 85

Our ClientsOur Clients

Prevalence of dementia thought to Prevalence of dementia thought to double every 5 years in the elderlydouble every 5 years in the elderly

Affects 1% of persons 60 and overAffects 1% of persons 60 and over Affects 45% of persons 85 years oldAffects 45% of persons 85 years old Most common cause – Alzheimer’s Most common cause – Alzheimer’s

disease accounts for 60% to 70%disease accounts for 60% to 70% One new Alzheimer’s case every 6 One new Alzheimer’s case every 6

secondsseconds

WHAT IS DEMENTIAWHAT IS DEMENTIA

Dementia is not an illness – it is a Dementia is not an illness – it is a group of symptoms that may group of symptoms that may accompany a variety of diseases or accompany a variety of diseases or physical conditionsphysical conditions

It is a global disturbance of cognitive It is a global disturbance of cognitive functioning functioning

More than 50 diseases and More than 50 diseases and conditions result in varying degrees conditions result in varying degrees of mental impairment of mental impairment

WHAT IS DEMENTIAWHAT IS DEMENTIA

““a syndrome characterized by a syndrome characterized by acquired impairment in a least three acquired impairment in a least three of five neuropsychological and of five neuropsychological and behavioral domainsbehavioral domains 1. memory1. memory 2. language speech2. language speech 3. visuospatial ability 3. visuospatial ability 4. cognition (ability to manipulate 4. cognition (ability to manipulate

previously learned information)previously learned information) 5. mood/personality5. mood/personality

WHAT IS DEMENTIAWHAT IS DEMENTIA

A diagnosis requires that cognitive defect A diagnosis requires that cognitive defect be severe enough to cause impairment in be severe enough to cause impairment in social and occupational functioningsocial and occupational functioning

Symptoms can result from a variety of Symptoms can result from a variety of diseases or physical conditionsdiseases or physical conditions

Conditions result in varying degrees of Conditions result in varying degrees of mental impairmentmental impairment

Manifest at different times many are Manifest at different times many are reversiblereversible

The lava lamp theoryThe lava lamp theory

Common Dementia Causing Common Dementia Causing Diseases and conditionsDiseases and conditions

Alzheimer’s diseaseAlzheimer’s disease Multi-infarct dementia (stroke)Multi-infarct dementia (stroke) Parkinson’s diseaseParkinson’s disease Huntington’s diseaseHuntington’s disease Creutzfeldt-Jakob diseaseCreutzfeldt-Jakob disease Picks diseasePicks disease DepressionDepression Anxiety disordersAnxiety disorders Closed head injuriesClosed head injuries

Legal vs. Clinical CapacityLegal vs. Clinical Capacity

A LOOK AT LEGAL CAPACITYA LOOK AT LEGAL CAPACITY

Historically – Lawyers deal with Historically – Lawyers deal with situation specific standardssituation specific standards

Make a will, gift, contract, make Make a will, gift, contract, make medical decisionsmedical decisions

LEGAL STANDARDS OF LEGAL STANDARDS OF CAPACITYCAPACITY

State specificState specific Generally a presumption of capacityGenerally a presumption of capacity Adjudication of incapacity might not Adjudication of incapacity might not

prevent meeting the standard – Will?prevent meeting the standard – Will? The legal transaction specific The legal transaction specific

analysis in many cases parallels analysis in many cases parallels clinicians evaluation of capacity – clinicians evaluation of capacity – “domains”“domains”

Transaction Specific AnalysisTransaction Specific Analysis Testamentary CapacityTestamentary Capacity Contractual Capacity Contractual Capacity Donative CapacityDonative Capacity Convey Real EstateConvey Real Estate Make a Health Care DecisionMake a Health Care Decision MediateMediate DriveDrive MarryMarry Stand TrialStand Trial VoteVote

CAPACITY IN THE GUARDIANSHIP CAPACITY IN THE GUARDIANSHIP CONTEXTCONTEXT

60’ Paradigm – underlying medical or 60’ Paradigm – underlying medical or mental health diagnosismental health diagnosis

80’s trend – focus on function – 80’s trend – focus on function – underlying diagnosis is important but underlying diagnosis is important but may not be the basis for a guardianship may not be the basis for a guardianship

New Trend – Cognitive element – New Trend – Cognitive element – “unable to receive or evaluate “unable to receive or evaluate information, or communicate decisions information, or communicate decisions to meet essential requirements for to meet essential requirements for safety. UGPPAsafety. UGPPA

Clinical ModelsClinical Models

For Guardianship - The Grisso ModelFor Guardianship - The Grisso Model For Transactional - Domain specific For Transactional - Domain specific

ModelsModels Domain – a cohesive area of Domain – a cohesive area of

cognitive or functional behaviorcognitive or functional behavior Consent CapacityConsent Capacity Financial CapacityFinancial Capacity Independent LivingIndependent Living

ConclusionConclusion

Whether in the guardianship context Whether in the guardianship context or the transactional context - or the transactional context - Capacity is a legal determination Capacity is a legal determination made by a judge based upon a legal made by a judge based upon a legal definition with opinions given by definition with opinions given by professionalsprofessionals

These Are Our StandardsThese Are Our ClientsThese Are Our Challenges

What Do We do

The Slippery Slope AgainThe Slippery Slope Again

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

La Monomanede L’envie

TheodoreGericault1819

HowDo We

Communicate

Communicating With Communicating With Your ClientYour Client

Factors to Consider Factors to Consider

Client’s ability to Client’s ability to articulate reasoningarticulate reasoning underlying a particular decisionunderlying a particular decision

Client’s Client’s knowledge and appreciationknowledge and appreciation of of impact and outcome of decisionsimpact and outcome of decisions

ConsistencyConsistency of client’s professed choices, of client’s professed choices, desires and goals “over time” desires and goals “over time”

Potential impact of external variablesPotential impact of external variables on the on the client’s decision making process (e.g., third client’s decision making process (e.g., third parties, financial stressors, physical health) parties, financial stressors, physical health)

Nature of the legal task and issue and the Nature of the legal task and issue and the adequacy of your presentationadequacy of your presentation

Signs/Indicators of Possible Signs/Indicators of Possible Impairment and Diminished Capacity* Impairment and Diminished Capacity*

Short term memory loss (versus Short term memory loss (versus better memory for events of the past)better memory for events of the past)

Language and communication Language and communication problemsproblems

Problems with comprehension of Problems with comprehension of abstract conceptsabstract concepts

Lack of cognitive flexibilityLack of cognitive flexibility Problems with calculation Problems with calculation

Signs/Indicators of Possible Impairment Signs/Indicators of Possible Impairment and Diminished Capacity*and Diminished Capacity*

Problems with orientation (space, time, Problems with orientation (space, time, place, person)place, person)

Problems with hygieneProblems with hygiene Emotional lability and impulsivityEmotional lability and impulsivity Delusions and hallucinations Delusions and hallucinations

*Always try to consider the client’s relative *Always try to consider the client’s relative level of functioning as compared to some level of functioning as compared to some prior baselineprior baseline

Contributors to Impaired Contributors to Impaired Capacity Capacity

Cognitive impairment (e.g., dementia, Cognitive impairment (e.g., dementia, delirium)delirium)

Mental disorders (e.g., depression, Mental disorders (e.g., depression, psychotic disorders)psychotic disorders)

Physical disordersPhysical disorders Medication effectsMedication effects Substance abuseSubstance abuse Impaired sensory functioningImpaired sensory functioning Situational stressorsSituational stressors

Enhancing Client CapacityEnhancing Client Capacity

Accommodate sensory changes and Accommodate sensory changes and limitations limitations

Accommodate cognitive changes and Accommodate cognitive changes and limitationslimitations

Foster trustFoster trust

Accommodate Sensory Accommodate Sensory Changes and LimitationsChanges and Limitations

Minimize glare on materials and in roomMinimize glare on materials and in room Minimize background noiseMinimize background noise Look at client when speaking and sit close Look at client when speaking and sit close

to eachto each Speak more slowly and more loudly, using Speak more slowly and more loudly, using

a lower pitched voicea lower pitched voice Print documents in larger fontsPrint documents in larger fonts Provide extra time for reading and review Provide extra time for reading and review

of documentsof documents

Accommodate Cognitive Accommodate Cognitive Changes and LimitationsChanges and Limitations

Adopt a slower paceAdopt a slower pace Ask non-compound questions, break up Ask non-compound questions, break up

materials into smaller segments, and discuss materials into smaller segments, and discuss one issue at a time one issue at a time

Verify understanding before moving onto Verify understanding before moving onto another topic, provide corrective feedback another topic, provide corrective feedback when necessary and then re-assesswhen necessary and then re-assess

Schedule appointments for time of day when Schedule appointments for time of day when client is at his or her bestclient is at his or her best

Provide time for breaks and use multiple Provide time for breaks and use multiple shorter appointment rather than longer onesshorter appointment rather than longer ones

Consider meeting in the client’s residenceConsider meeting in the client’s residence

Foster TrustFoster Trust Interview client aloneInterview client alone Stress confidentiality of relationship and Stress confidentiality of relationship and

fiduciary dutyfiduciary duty Paraphrase assessment of client’s desires, Paraphrase assessment of client’s desires,

goals, and intentionsgoals, and intentions Never talk about the client when others Never talk about the client when others

are in the room are in the room Consider word choicesConsider word choices ““person-centric”=focus on what client can person-centric”=focus on what client can

dodo Complex v. simple; big picture vs. detailsComplex v. simple; big picture vs. details

Communication Tips fromCommunication Tips fromAlzheimer’s AssociationAlzheimer’s Association

PatiencePatience Don’t correct or criticizeDon’t correct or criticize Limit distractionsLimit distractions Non-verbals—point to somethingNon-verbals—point to something Emotions vs. wordsEmotions vs. words https://www.alz.org/care/dementia-https://www.alz.org/care/dementia-

communication-tips.aspcommunication-tips.asp

Stay Balanced