Presenting a live 90 ‐ minute webinar with interactive Q&A Representing Clients with Diminished Representing Clients with Diminished Capacity in Civil Matters Assessing the Client, Taking Protective Action and Meeting the Ethical Challenges TUES DAY, DECEMBER 14, 2010 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Michele Mathes, Director of Education and Research Programs Center for Advocacy for the Rights and Interests of the Elderly , Philadelphia Katherine G. Weiss, Proj ect Attorney, SeniorLAW Center , Philadelphia The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Katherine G Weiss SeniorLAW Center Katherine G. Weiss, SeniorLAW Center Michele Mathes, CARIE 4
“Capacity is the black hole of legal ethics. h bl k h l f l l h Many questions find their way into the capacity category, but few answers ever b f emerge.” – Peter Margulies 5
Capacity is understood to exist along a continuum – there is no bright line Model Rules of Professional Conduct do not d l l f f l d d provide effective guidance Many (if not most) cases in which diminished f h h d h d capacity is an issue require action in conditions of uncertainty d f Implications for client can be profound either way 6
(a) When a client's capacity to make adequately considered decisions in connection with a representation is h diminished, whether because of minority, mental impairment or for some other reason, l f h the lawyer shall, as far as reasonably possible , maintain a normal client ‐ lawyer relationship l l l l h with the client. 7
(b) When the lawyer reasonably believes that the b h h l bl b l h h client has diminished capacity, is at risk of substantial physical financial or other harm unless substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take , y y 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 guardian ad litem, conservator or guardian. 8
(c) Information relating to the representation f of a client with diminished capacity is protected by Rule 1.6. When taking d b l h k protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule h l l dl h d d l 1.6(a) to reveal information about the client, b but only to the extent reasonably necessary l h bl to protect the client's interests. 9
In 2002, the language of Rule 1.14 of the ABA’s Model Rules of Professional Conduct (MRCP) was changed to reflect an nderstanding of capacit as a changed to reflect an understanding of capacity as a matter of degree rather than a black and white determination determination Title of rule changed from “Client Under a g Disability” to “Client with Diminished Capacity” 10
Lawyers are not trained to make capacity assessments, but Lawyers sometimes need to make capacity d k assessments To decide if an attorney ‐ client relationship is possible Because a physician or other diagnostician is not available or time does not allow seeking one out Because referral for professional assessment may involve disclosure of confidential information l d l f f d l f 11
In determining whether an attorney ‐ client relationship can be created in the first place In establishing the goals of representation bl h h l f When goals of representation change In deciding terms of settlement d d f l When considering whether it is appropriate to disclose confidences d l f d 12
Lawyers’ ethical guidelines for assessing La ers’ ethical g idelines for assessing client capacity Approaches to capacity under state guardianship or conservatorship laws guardianship or conservatorship laws Legal standards of capacity for specific tasks Legal standards of capacity for specific tasks or legal transactions 13
Functional assessment The effectiveness of client’s decision ‐ making process Substantive assessment S b i The quality of the client’s decisions 14
Functional components of decision ‐ making f Ability to articulate reasoning behind a decision Variability of state of mind Appreciation of consequences of decisions Substantive components of decision ‐ making Irreversibility of decision Substantive fairness of decision Consistency with lifetime commitments of client y 15
Statutory criteria vary St t t it i May include, in “mix ‘n’ match” fashion, findings regarding: regarding: Disabling condition Functional behavior regarding essential needs Functional behavior regarding essential needs Cognitive function Need for guardianship Need for guardianship Guardianship is the “least restrictive alternative” alternative 16
Uniform Guardianship and Protective U if G di hi d P i Proceedings Act (1997) includes “[A]n individual who . . . is unable to receive and “[A] i di id l h i bl t i d evaluate information or make or communicate decisions to such an extent that [Cognitive test] [ g ] + The individual lacks the ability to meet essential y requirements of physical health, safety, or self ‐ care, even with appropriate technological assistance [Essential needs test] assistance [Essential needs test] 17
North Dakota North Dakota Any adult person who is impaired by reason of mental illness, mental deficiency, physical illness or disability or chemical dependency [Disabling condition criterion] dependency . . . [Disabling condition criterion] + . . . to the extent that the person lacks capacity to make or communicate responsible decisions . . . [Cognitive criterion] + . . . concerning that person’s matters of residence, education, medical treatment, legal affairs, vocation, finance, or other matters [Essential needs criterion] matters . . . [Essential needs criterion] + . . . or which incapacity endangers the person’s health or safety. [Endangerment criterion] [Endangerment criterion] 18
Virginia Virginia An adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people events or environments to such an extent to people, events, or environments to such an extent . . . [Cognitive criterion] + . . . that the individual lacks the capacity to (1) meet the essential requirements for his health, care, safety, or therapeutic needs . . . [Essential needs/person criterion] + . . .without the assistance or protection of a guardian . . . [Necessity criterion] or (ii) manage property or financial affairs or provide for his/her (ii) t fi i l ff i id f hi /h support or for the support of his/her legal dependants . . . [Essential needs/property criterion] + . . . w/o the assistance or protection of a conservator [Necessity w/o the assistance or protection of a conservator [Necessity criterion] 19
Contractual (including contracting for legal f services) Testamentary Donative Executory (executing a legal document, e.g., l l d Power of Attorney document) Decisional (especially health care decisions) l ll h l h d 20
Understand the nature of the act of making a f f will Have a general understanding of the nature l d d f h and extent of her/his property Have a general recognition of those persons l f h who are “the natural objects of his bounty” Understand the distribution scheme d d h d b h Appreciate all of the above elements in relation to each other l h h 21
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