What Attorneys Need to Know About a Client's Cognitive Capacity

• Publication year: 2023
• Author: By Bonnie J. Olsen, Ph.D.*

WHAT ATTORNEYS NEED TO KNOW ABOUT A CLIENT'S COGNITIVE CAPACITY

By Bonnie J. Olsen, Ph.D.*

I. SYNOPSIS

As the population of older adults grows, estate and probate attorneys will have increasing interactions with clients with diminished decision-making ability. Cognitive impairment, the most common cause of diminished capacity in older adults, may impact a range of acts that carry legal import, including entering into an attorney-client relationship, making or amending a testamentary disposition, appointing a power of attorney, and executing a trust agreement. The specter of incapacity can undermine the legal effectiveness of a client's decisions and serve as a predicate for challenges to the validity of a client's estate plans. Issues of client capacity also affect the attorney-client relationship and representation. Given the implications of capacity for legal practice, attorneys should have a basic understanding of capacity and become familiar with signs of cognitive impairment, available resources for cognitive assessment, and best practices in meeting with clients who may be cognitively impaired.

II. CALIFORNIA ATTORNEYS' LEGAL DUTIES AND ETHICAL OBLIGATIONS TO CLIENTS WITH DIMINISHED CAPACITY

A. Statutory Guidelines Regarding Capacity and Legal Duties to Clients with Cognitive Impairment

Under the California Probate Code, a person's capacity to make a specific decision is presumed.⁰¹ This rebuttable presumption may be overcome by substantiating evidence of one or more deficits in that individual's mental function and a correlation between those deficits and the proposed decision or act in question.⁰² Notably, diagnosis of disease alone does not disqualify a person from contracting, conveying property, or executing a will or trust agreement.⁰³

A non-exhaustive list of deficits is enumerated under the Probate Code and classified under the headings, "alertness and attention," "information processing," "thought processes," and "ability to modulate mood and affect."⁰⁴ The deficits must cause significant impairment to an individual's "ability to understand and appreciate the consequences of" the proposed decision or act.⁰⁵ In determining whether the deficit is significant enough to support a finding of incapacity to make a decision or take a particular action, courts may consider the "frequency, severity and duration of periods of impairment."⁰⁶

The degree of client understanding required is dependent upon "the complexity of the decision."⁰⁷ Whether a client possesses sufficient capacity is situational, dependent upon the substantive law and the specific decision to be made. For example, a client may have testamentary capacity to execute a simple will, but lack the competence to execute a complex contract.⁰⁸ Thus, a client may have the capacity to make some decisions, but not others.

B. Ethical Obligations to Clients with Diminished Capacity

The American Bar Association, in its Model Rules for Professional Conduct, promulgated Rule 1.14 to address an attorney's duties with respect to a client with diminished capacity. The Rule enables attorneys to disclose confidential information when reasonably necessary to protect clients with diminished capacity.⁰⁹

However, the California Supreme Court elected not to adopt the Model Rule, essentially limiting California

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attorneys' ability to reveal confidences to protect incapacitated clients from harm. In 2022, the State Bar of California Standing Committee on Professional Responsibility and Conduct (COPRAC) issued Formal Opinion 2021-207 (the "Opinion") to provide greater clarity and guidance to civil practitioners, transactional attorneys, and estate planners regarding their ethical obligations to clients with diminished capacity.¹⁰

Pursuant to the Opinion, attorneys are advised to retain, as reasonably possible, a normal attorney client relationship, namely, one in which the client makes decisions legally and ethically reserved to clients.¹¹ In representing an impaired client, an attorney's ethical obligations—including the duties of competence, communication, loyalty, and nondiscrimination—remain constant and inviolate.¹² The manner of complying with those duties, however, may differ as necessary to support and preserve a client's decision-making authority.¹³ For instance, the duty of competence may require an attorney "to inquire into or make judgments concerning the client's capacity."¹⁴ If the attorney believes that they are unqualified to do so, they may consult with a more experienced lawyer for guidance.¹⁵With the client's informed consent, the attorney may also seek counsel from family, friends, or medical and mental health professionals to support client capacity.¹⁶ To enhance attorney client communications and client decisional authority, the Opinion suggests accommodations in: how lawyer-client communications are conducted by adjusting the interview environment, communicating more slowly or in writing, spending extra time or having multiple sessions, or communicating with the client at times when the client is less fatigued, more lucid or more receptive.¹⁷

Given California's restrictive rules on attorney disclosure of client confidences and the impact on clients with diminished capacity, the Opinion suggests that attorneys address and plan with clients for potential future incapacity.¹⁸ This could include the appointment of a surrogate decision-maker or power of attorney.¹⁹ It may include anticipatory consent to specific attorney disclosures in order to protect a client from harm in the event of later incapacity.²⁰ In cases where a client is unable or unwilling to provide informed consent for attorney intervention, an attorney may be ethically precluded from taking protective action.²¹

Representation of clients with diminished capacity can place attorneys in an ethical conundrum with inadequate resolutions. An attorney may feel conflicted about accepting or rejecting client direction if they reasonably believe the client lacks capacity. Indeed, if a client lacks capacity, the attorney may consider declining the representation at the outset or withdrawing from the representation.²² Attorneys must consider the range of issues and implications in deciding the least onerous impact on the client and the most appropriate response under the circumstances. The Opinion recognizes that in representing a client with impairment, an attorney may be asked to make ethical judgment calls relating to the client's capacity.²³ If those judgments are "disinterested" and "informed," according to the Opinion, the legal approach selected by the attorney, even if later proven mistaken, should not be deemed unethical or expose them to professional discipline.²⁴

III. COGNITION AND CAPACITY

A. What Attorneys Should Know About Cognition

"Dementia" is the umbrella term used to describe the degenerative brain conditions that most commonly underlie older adults' diminished cognition.²⁵ Formally classified as "major neurocognitive disorder," the term, "dementia," remains in wide use, and is also correct in most cases...