Chelan Douglas Bar Association January 10, 2017 CAPACITY ISSUES IN CLIENT RELATIONS Christina M. Davitt, Attorney and Certified Professional Guardian
Chelan Douglas Bar Association January 10, 2017
CAPACITY ISSUES IN CLIENT
RELATIONS
Christina M. Davitt,
Attorney and Certified Professional Guardian
Pornography and legal capacity Both are difficult terms to define
We tend to rely on the standard of “we know it when we see it.”
Justice Potter Stewart
Do you make capacity assessments?
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Two Threshold Questions:
1. Whether the client has the capacity to hire the attorney.
2. Whether the client has the capacity to complete the legal transaction at hand.
Four Key Ethical issues
1. Preservation of client authority and autonomy
2. Adequate communication with the client
3. Preservation of confidential information
4. Avoidance of conflicts of interest
RPC 1.14 Client with diminished capacity
RPC 1.14 requires the maintenance of a normal lawyer client relationship even if the attorney believes that the client has diminished mental capacity.
RPC 1.14
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantialphysical, financial or other harm unless action is taken and cannot adequately act in the client's own interest,
RPC 1.14 the lawyer may take reasonably necessary
protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
RPC 1.14 (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.
Charles Sabatino
Director , ABA Commission on Law and Aging
1. Thou shalt presume capacity.
How likely is it that the client lacks capacity?
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Capacity
Mental capacity includes the ability to:
Think clearly
Recall accurately
Express thoughts through communication
Plan and execute actions
Is task specific on a continuum, not global
Tied to the level of risk
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Capacity
Experience and education may be relevant
Literacy and the extent of education may be related to the ability to understand complex financial transactions
Language capacity may be relevant to the ability to understand
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Capacity can fluctuate with:
Medication
Time of day
Events in a person’s life like grief, anxiety, depression
Chemical dependence
Mental illness
Medical condition or illness
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Medical Conditions that Affect Capacity
Vision Loss
Hearing Loss
Strokes
Depression
Mild Cognitive Impairment
Dementia
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DEMENTIA
Dementia is a general term for loss of memory and other mental abilities severe enough to interfere with daily life.
It is caused by physical changes in the brain.
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MILD COGNITIVE IMPAIRMENT
Affects memory, such as for recent events, appointments, conversations
Affects ability to make sound decisions, judge the time or sequence of events need to complete a complex task or visual perception
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MILD COGNITIVE IMPAIRMENT
Risk factors include:
advancing age
family history of Alzheimer's or another dementia; and
conditions that raise risk for cardiovascular disease.
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MILD COGNITIVE IMPAIRMENT
Long term studies suggest that 15-20% of those aged 65 and older have mild cognitive impairment.
Alzheimer’s Association, http://www.alz.org
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ALZHEIMER’S DISEASE
Most common – up to 80% of cases
No cure – symptom management
Most common early symptom is difficulty remembering new learned information
ALZHEIMER’S DISEASE
leads to disorientation, mood and behavior changes;
deepening confusion about events, time and place;
unfounded suspicions about family, friends and professional caregivers;
more serious memory loss and behavior changes;
difficulty speaking, swallowing and
walking.
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ALZHEIMER’S DISEASE
Fatal disease with the general downward trend
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VASCULAR DEMENTIA
Stepwise progression downward
DOES A DEMENTIA DIAGNOSIS PRECLUDE CAPACITY?
2. Thou shalt talk to the client alone.
Identifying who the client is
Avoiding conflicts of interest
Explaining to the client to the extent necessary to permit the client to make informed decisions regarding the representation RPC 1.14
Allows the client to effectively participate
Cannot rely on family or others just because client is “difficult”
3. Thou shalt take steps to maximize capacity.
Adjust the environment to enhance communication
Less glare, more light, less background noise
Reader glasses, pocket talkers
Large (14-16 font) with high contrast
Mid morning (not late afternoon) meetings
Go over a manageable amount of material at one sitting
Give written summary with instructions
Face the client, speak more slowly
4. Thou shalt not worship any one standard for capacity.
RPC 1.14
the client's 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.
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Capacity Worksheet for Lawyers
(ABA, 2005)
A. Observational Signs
Short Term Memory Problems
Language Communication problems
Comprehension Problems
Lack of Mental Flexibility
Calculation/ Financial Management problems
Disorientation
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Capacity Worksheet for Lawyers
(ABA, 2005)
B. Emotional Functioning
Emotional Distress
Emotional Lability
Delusions
Hallucinations
Poor grooming/Hygiene
Letting others speak for them
Not as interactive as they had been or as you expect
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5. Thou shalt not covet the mini-
mental state exam.
Should attorneys use clinical exams as part of a capacity assessment?
Part B of the Capacity Assessment Worksheet
What are the general legal elements of the task at hand?
Note the client’s understanding, appreciation and functioning
6. Thou shalt not end any query with
only the word “Capacity.”
Yea, the proper query shall be,
“Capacity for What?”
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Testamentary Capacity
At the time the will was executed
the Testator had sufficient mind and memory to understand the transaction in which he is then engaged,
To comprehend generally, the nature and extent of the property which constitutes his estate, and
To recollect the natural objects of his bounty.
In re Peter’s Estate, 43 Wn.2d 846 (1953)
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Contractual Capacity
Possession of sufficient mind to understand, in a reasonable manner, the nature and effect of the act.
Is the client capable of making a rational judgment concerning a particular transaction?
Client must understand the mutuality of the contract
The more irreversible and serious a transaction, the more capacity is required.
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Donative Capacity
An intelligent perception and understanding of the disposition(s) made of property and the persons and objects one desires to be the objects of one’s bounty.
How does this fit in with the client’s estate plan?
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Capacity to Appoint a Financial Agent
Understand that the AIF can transfer the principal’s property/bounty
“Can make you homeless”
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Capacity to Appoint a Heath Care Agent
Client is of sound mind
Acting freely
Look at the Informed Consent standards
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Informed Consent
The ability to understand one’s current medical condition, the possible treatments, the risks associated with those treatments and their consequences.
The ability to use relevant information to make a rational decision
The ability to communicate one’s decision
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Guardianship Capacity Standards
RCW 11.88.010(c)
Legal, not a medical decision.
Age, eccentricity, poverty, medical diagnosis alone not sufficient to justify a finding of incapacity
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Guardianship Capacity Standards
RCW 11.88.010(1)
Demonstrated ability to adequately provide for nutrition, health, housing, safety, finances or property
Sufficient risk of personal, financial harm
Guardianship and Testamentary Capacity
Appointment of a guardian does not preclude testamentary capacity.
Estate of Alsup, 181 Wash. App. 856 (Div. III) (2014)
Tailor guardianship orders to the ward’s residual capacity.
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In re Denny, 195 Wash, App. 1022 (Div. I
2016) (unpub).
Ward retained specific rights:
Engage an attorney to complete estate planning documents
Consent to medical treatment (with family help and notice to the guardian)
Whom shall provide care and assistance
Making decisions regarding social aspects of her life
Task Specific FactorsThe more serious the concerns:
The higher the function needed:
Is the decision in keeping with the client’s long term values and commitments?
Is the decision objectively fair?
Is the decision irreversible?
Can client articulate reasoning that led to the decision?
Is the decision consistent with time?
Are the primary values consistent over time?
Can client appreciate the consequences of their decision?
7. Thou shalt seek the big
picture, with all of its variability,
intermittency, and nuance.
8. Thou shalt honor thy
client’s own considered or
habitual standards of behavior
and values not standards and
values held by you or others.
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9. Thou shalt honor thy client’s confidentiality and
autonomy even in the face of incapacity.
Reasonable Protective actions under RPC 1.14 may only be taken when:
1. Client has diminished capacity,
2. is at risk of substantial physical, financial or other harm unless action is taken and
3. the client cannot adequately act in the client’s own interest.
10. Thou shalt plan ahead for incapacity to ensure that one’s wishes are respected.
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Approach to clients (Worksheet Part D)
Presume capacity
Look for signs of diminished using capacity assessment worksheet
If no issues –proceed with normal client relationship
If yes, maximize capacity
Re-assess
If mild, may continue with extended counseling
If more than mild – consider a consult with a clinician (curbside) or a referral (HIPAA release)
Consider whether protective action is required
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Protective Actions under RPC 1.14
Can client appoint a Power of Attorney?
Get a GAL appointed for the litigation
Referral to clinician for evaluation
Need client consent
Specific referral – how does the clientpresent, what issues are there, whatquestion does the attorney need answered,what is the legal task at hand?
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In re the Matter of Disciplinary Proceedings
against Eugster, 166 Wash. 2d 293 (2009)
18 month’s suspension and fine of $13,500resulted when
Attorney failed to investigate a client’salleged incompetency before filing aguardianship petition against her
He did so in order to get control of her estate
He disclosed privileged information withouther consent RPC 1.6
He refused to turn over her file
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In re the Matter of Disciplinary
Proceedings against Eugster, 166 Wash.
2d 293 (2009)
Attorney knew client had had a “sanity” or mental status exam within six months of filing the guardianship petition and was determined to be competent
Attorney thought she had capacity six months prior to the filing when she engaged him for estate planning
Attorney failed to explain why he decided she lacked capacity on the same day she wanted to discharge him and retain new counsel
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Intake Tips
Who selected you, who made the appointment
Draw a family tree and the familial relationships
What are the client’s concerns?
Education and business experience of family members
Drug, criminal or medical issues in the family
Review prior documents or ask why there aren’t any
Ask the Audience….
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Bonus Tips – Avoid clients who:
Want to include beneficiaries in estate administration
Are dependent on a third party
Are uncontrolled fiduciaries or beneficiaries
Are hostile or vindictive fiduciaries or beneficiaries
Are seeking an unusual disposition of the estate
Are potentially incapacitated
Spouses, especially a second marriage with disparate assets between spouses
Beneficiaries with alcohol, drug or other dependencies
Existing or anticipated family conflict
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Cases
Estate of Alsup, 181 Wash. App. 856 (Div. III)(2014)
In re Gwinn’s Estate, 36 Wn.2d 583 (Wash. 1950)
In re Kessler’s Estate, Anderson v. Whatmore, 35 Wn. 2d 156 (Wash. 1949).
In re the Matter of the Disciplinary Proceedings against Stephen K. Eugster, 166 Wash.2d 293 (2009)
In re Peter’s Estate, 43 Wn. 2d 846 (Wash. 1953).
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References
Alzheimer’s Association: http://www.alz.org
American Bar Association/American Psychological Association, Assessment ofOlder Adults with Diminished Capacity: A Handbook for Lawyers (2005),http://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf
Flowers, R. and Morgan, R. (2013) Ethics in the Practice of Elder Law, AmericanBar Association Publishing.
Hammerele, V. 2013 WL 4188063, Ethics for Trust and Estate Practitioners:Leading Lawyers On Identifying and Avoiding Conflicts of Interest andUpholding Rules of Professional Conduct: Avoiding Malpractice, ThompsonReuters.
Kozak, B. (2016) The Forgotten Rule of Professional Conduct – Representing AClient With Diminished Capacity, 49 Creighton L. Rev. 827
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References
Morgan, H. Decisional Capacity – A View From the Field. The Center ofGeriatric and Family Psychiatry, Inc. Glastonbury, CT (2016).
Johns, A. (2004) Older Clients with Diminishing Capacity and Their AdvancedDirectives, 39 Real Prop. Prob. & Tr. J. 107
Ross, E. and Reed, T. (2016) Will Contests, §6:2. The Greenwood-Baker Ruleand the psychology of testamentary capacity, Will Contests, 2d Ed. June 2016Update.
Stasi, T. (2012) Reform That Understands Our Seniors: How InterdisciplinaryServices Can Help Solve The Capacity Riddle in Elder Law, 45 U. Mich. J.L.Reform. 695
Tegland, K. RPC 1.14 Client with Diminished Capacity, 2 Wash. Prac., Rules Practice, RPC 1.14 August 2016 Update, Westlaw, Thompson Reuters.
Nancy says good bye!Thank you!
OGDEN MURPHY WALLACE
OMWLAW.COM
Christina M. Davitt
Attorney and
Certified Professional Guardian
(509) 662-1954