Chapter 2 Ethics and the Alzheimer's Client

LibraryAlzheimer's and the Practice of Law: Counseling Clients with Dementia and Their Families (ABA) (2013 Ed.)

CHAPTER 2 ETHICS AND THE ALZHEIMER'S CLIENT

This chapter analyzes the ABA model rules regarding representation of a client with compromised mental status and focuses on how to properly represent such clients. However, sometimes the best thing a lawyer can do is decline representation.

Mrs. Margaret Sundowner

555 Main St.

Springfield, IL 50050

Re: Our decision to not accept representation

Dear Margaret,

On two occasions we have met with you and adult members of your family. The purpose of the meetings was to explore the possibility of doing some estate planning and Medicaid-related asset protection. The Rules of Professional Responsibility require that we assess the capacity of prospective clients to engage us as their attorney and to determine if they have testamentary capacity [estate planning].

After two extensive meetings, it is my legal concern that your capacity to do estate planning may be impaired. We would like to refer you to a geriatric psychiatrist or neurologist. Their evaluation would be necessary for us to determine your ability to engage in estate planning.

At this time, we are unable to be of assistance to you, and we decline to represent you to do the estate planning that your adult children seem to believe is in your best interests.

Sincerely,

Rick L. Law

Rule 1.14

As the graying of America continues, lawyers are much more likely to find themselves representing clients with cognitive impairments such as Alzheimer's disease. These impairments are often hidden or difficult to identify in their early stages. Thus, it is extremely important that any lawyer interacting with a client or potential client who is, or may be, impaired consult ABA Model Rule 1.14 as a starting point.

Model Rule 1.14 is a joint effort of the American Bar Association Commission on Law and Aging and the American Psychological Association. It is designed to give lawyers direction and guidance on how to actually take such action. The rule addresses a lawyer's professional obligations when dealing with a client with diminished capacity.

This guidance is more important now than ever as the entire country is experiencing an unprecedented transfer of wealth from the WWII generation through the baby boomer generation.

The ABA Commission on Law and Aging states that its mission is to strengthen and secure the legal rights, dignity, autonomy, quality of life, and quality of care of elders. Its mission is carried out through research, policy development, technical assistance, advocacy, education, and training.

Specifically, there is a three-part test that a lawyer must apply to clients in order to have the option to take proactive action: first, clients must have diminished capacity; then, there must be a risk of substantial harm; and lastly, clients must have an inability to protect their own interest.1

The rule is set out below.

Client-Lawyer Relationship

ABA Rule 1.14 Client with Diminished Capacity

(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, 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.
(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.2

Practice Pointer:

It is critical to note that Rule 1.14(b), by using the term "may" in the phrase "the lawyer may take reasonable necessary protective action," is giving the lawyer an option rather than creating a duty. Were the term "shall" or "must" used in place of "may," a duty would be created, but as the rule is written, no duty is being forced upon lawyers.

This is a key choice of words used by the ABA, and the rule is often misinterpreted as creating a duty when, in fact, that is not the case at all.

Succinctly, the rule states that lawyers are supposed to treat a client with diminished capacity in the same manner as they would treat any other client. Unfortunately, it is not quite that simple in the real world.

The reality is that the burden of trying to determine capacity of an individual can be very daunting for lawyers.

Practice Pointer:

Dr. Nishad "Nick" Nadkarni, who is board certified in both general psychiatry and forensic psychiatry, recognizes the difficult task lawyers face in complying with Rule 1.14.

"I think that this [Rule 1.14] would be, as written, extremely difficult to implement competently by an average attorney," he says. "Let me explain that by saying that I believe that these guidelines, or these structured considerations, are created with the best intent, but without formal training in medicine would be very difficult to implement.

"It's very difficult, and I'm thinking both in the civil and criminal arenas, for a non-trained individual to be able to identify those issues and then seek consultation. People that don't have the proper training in that area don't know what to look for, as we (psychiatrists) would know. The protective action that attorneys may take is very similar to actions physicians who have questions about somebody's specialty medical problem should take.

"For example, if I had somebody on the psychiatric floor that I was treating who had end-stage renal disease, I would consult with a nephrologist (kidney specialist) even though I'm trained and licensed to undertake these issues—I would not want to, since I am not a specialist. Instead, I would consult a nephrologist to come in for the dialysis set-up."

It is important to note that while estate-planning and elder-law lawyers must be focused on the assessment of older adults with diminished capacity, Model Rule 1.14 applies to all lawyers. It applies to lawyers that go to traffic court, it applies to lawyers that handle personal injury cases, it applies to lawyers that do contract law, and it applies to lawyers that do real estate closings. The rule applies to everyone, and most lawyers probably don't even know that this rule exists.

The rule suggests that lawyers should try to maintain a normal client-lawyer relationship with a client with diminished capacity to the extent that is possible. However, as noted in ABA Formal Ethics Opinion 96-404, treating a client normally is not always possible in the face of the unfortunate reality of Alzheimer's. "When the client's ability to communicate, to comprehend and assess information, and to make reasoned decisions is partially or completely diminished, maintaining the ordinary relationship in all respects may be difficult or impossible."3

In these instances, the lawyer has a responsibility to the client to change the relationship accordingly.

One way to alter the relationship is to seek help from the client's family. Going to the client's family for assistance generally does not affect the applicability of the attorney-client evidentiary privilege.4 However, lawyers need to be vigilant in not forgetting whom they are representing. The client's interests must be kept foremost and the lawyer is required, to the extent possible, to look to the client and not the family members to make decisions on behalf of the client.5

The comments to the rule also provide that the lawyer may consult a diagnostician to help determine whether the client has sufficient capacity to make informed decisions.6

Rule 1.14(b) permits the lawyer to take reasonable necessary protective action in instances where a client with diminished capacity is at risk of substantial physical, financial, or other harm unless action is taken and it is determined that the client is incapable of acting for him/herself.

Case Study

The Abduction and Taking of a Senior Citizen to Another State by One Family Member

One of the authors of the book has noticed a disturbing trend of abduction of seniors by their family members. Recently, he had a client come into his office for some estate planning and he applied Rule 1.14 to the engagement with the client. The client engagement agreement was signed by the elderly client and her adult son with a power of attorney for property. The author's firm went through its capacity determination process and determined that she had more than mild problems and that, per Rule 1.14, the firm needed to refer her for evaluation. So the author, recognizing that he may have a client with diminished capacity, told the family members who accompanied the client to the office that the firm was going to require that she be evaluated by a geriatric psychiatrist. The author's firm scheduled her to be interviewed by a geriatric psychiatrist before having her sign any documents.

Prior to the capacity evaluation, one of the client's sons, who did not accompany her on the initial consultation, "abducted" his mother and took her to his out-of-state home. Then he called and demanded the return of his mother's retainer to him on her behalf. Obviously, if a professional evaluation had determined that the client did not have the capacity to do estate planning, the author's firm would not go forward and would return the retainer to the client's original power of attorney for property. The author responded to the abductor-son:

Dear out-of-state son of client, it is our understanding that your mother is with you, but
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