Danon No Title
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2002 No. 06 |
| Publication year | 2002 |
June 2002. Danon No Title
Beth A. Danon, Esq.
An attorney is subject to specific ethical requirements when representing a client whose decisionmaking capacity is impaired whether due to a psychiatric dis-ability, cognitive impairment, minority, or problems associated with aging.1 This article will examine the limited utility of the Vermont Rules of Professional Conduct when representing a client under these circumstances, and why the recom-mendations of the American Bar Association's Commission on Evaluation of the Rules of Professional Conduct pro-vides needed guidance to the practitioner on how to best represent the client and, at the same time, protect the client's autono-my.
The attorney's relationship to her client is one of agency.2 Therefore, it is gener-ally acknowledged that an attorney cannot represent a client's interest without her informed and competent consent. As with a physician, an attorney must be satisfied the client has the capacity to make critical decisions concerning the client's affairs. Lacking a client's valid, informed consent, the attorney has no authority to act on the client's behalf.3 Therefore, "a client's dis-ability will have a bearing upon whether a lawyer-client relationship exists at all."4
A person may be incompetent in fact, but not in law, and may also lack a guardian or authorized legal representa-tive. Under these circumstances, an attor-ney must first determine if the client has the capacity to be a client. Under exigent circumstances, as will be discussed later, ethical considerations may still require the attorney to represent an incompetent client,5 but otherwise the attorney will not have the proper authority under principles of agency to provide representation. However, an attorney must be careful not to confuse eccentricity, life-style choices, imprudence, or differences in core values with incompetence.6 Furthermore, clients "may be competent for some matters, but incompetent for others."7 For example, a client might have the capacity to execute a Durable Power of Attorney to designate an attorney-in-fact to sell her home, but lack the capacity to understand the financial complexities of the transaction.
Attorneys also should be mindful not to fall into the trap of presuming that individ-uals lack capacity to make decisions about their lives solely because they have a cog-nitive impairment or psychiatric disability. On the contrary, most clients with these kinds of disabilities are acutely aware of their needs and desires. Their difficulty is in trusting an attorney to act in accordance with those expressed needs and desires as opposed to the attorney's, or, indeed, soci-ety's, paternalistic presumptions.8 Often it is simply a matter of taking the time need-ed to develop a rapport with the client that will allow the attorney to better appreciate and understand what the client is trying to communicate.9
Once she has agreed to represent the client, however, what is the attorney's eth-ical obligations if she later determines the client's "ability to make adequately con-sidered decisions in connection with the representation is impaired?"10
In 1999, Vermont replaced its Code of Professional Responsibility with the Rules of Professional...
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