Clients with Diminished Capacity - June 13 Flashcards
If a client has diminished capacity for adequately making decisions in the course of the representation, must the lawyer nonetheless conduct a normal client-lawyer relationship with the client, if possible? (Q)
Yes. If a client has diminished capacity for adequately making decisions in the course of a representation (e.g., due to minority or mental condition), the lawyer must nonetheless conduct a normal client-lawyer relationship with the client to the extent possible. In other words, the lawyer must act to advance the client’s interests, treat the client with attention and respect, and, as much as possible, maintain communication with the client about the representation and look to the client to make decisions on the client’s behalf.
If a lawyer reasonably believes that a client has diminished capacity for adequately making decisions in the course of a representation, is at risk of serious harm, and can no longer adequately act in her own interests, may the lawyer take actions that are reasonably necessary to protect the client’s interests? (Q)
Yes. If a lawyer reasonably believes that a client has diminished capacity for adequately making decisions in the course of a representation; is at risk of serious financial, physical, or other harm; and can no longer adequately act in her own interests, the lawyer may take actions that are reasonably necessary to protect the client. These actions may include:
consulting with people who have the ability to act to protect the client and
seeking the appointment of a guardian, guardian ad litem (i.e., a guardian for a specific court action), or conservator.
A lawyer had represented a client in estate-related matters for 20 years. The lawyer noticed that the client had started sending the lawyer garbled emails and acting erratically. The lawyer therefore began to wonder if the client was suffering from diminished capacity. Subsequently, the client asked the lawyer to revise his will to leave the majority of his estate for the care of his two cats.
Should the lawyer promptly follow the client’s instructions to revise the will? (Q)
No. The lawyer should not promptly revise the will. A lawyer must maintain as normal a client-lawyer relationship as possible with a client who has diminished capacity. However, if the lawyer reasonably believes that the client has diminished capacity; is at risk of serious financial, physical, or other harm; and can no longer adequately act in his own interests, the lawyer may take actions that are reasonably necessary to protect the client.
Here, the client’s garbled communications and erratic behavior were a reasonable basis to suspect that the client had diminished capacity. The client’s plan to leave his estate for his cats might cause the client or his estate substantial financial harm. Thus, the lawyer should not revise the will without first establishing whether the client is of sound mind and, if necessary, taking reasonable action to protect the client.
