South Carolina Lawyer
Vol. 12, No. 6, Pg. 36.
Representing the Elderly or Disabled Client: Four Things Every Lawyer Should Consider
36Representing the Elderly or Disabled Client: Four Things Every Lawyer Should ConsiderBy Franchelle C. MillenderWhether you are an estate planner, a plaintiff's lawyer, defense counsel or a general practitioner, if you are in private practice you will likely represent an elderly or disabled client or be involved in a case in which a party is elderly or disabled. In these situations, there are many of the same considerations as in representing any client, but there are some special considerations that must be kept in mind in order to provide good counsel.
I. IS THE CLIENT COMPETENT?
While it is unfair to presume that a client is incompetent based on advanced age or disability alone, it is foolhardy to ignore the possibility that decision-making ability might be impaired. There are a number of issues revolving around the capacity of your client from the initial decision of whether a person is competent to establish an attorney-client relationship to whether a client is competent to execute a will to the client's ability to understand and agree to a personal injury settlement.
While there are assessment tools such as a mini-mental examination, most lawyers rely on their own judgment in determining the capacity of a client or potential client. Where there is a significant likelihood of a challenge to capacity, a statement from a physician or even a full psychological evaluation may be in order to help the lawyer document the file.
In making a decision regarding the client's capacity, the lawyer must keep in mind that different actions require different levels of capacity. The capacity needed to make a valid will has long been considered to be very low. In the case In re Estate of Weeks, 495 S.E.2d 454 (1997), the South Carolina Court of Appeals reiterated the standard of capacity for making a will. "The test of whether the testatrix had the capacity to make a will is whether she knew (1) her estate, (2) the objects of her affections, and (3) to whom she wished to give her property."
In this case the Court found capacity even though a guardian and conservator had been appointed for Mrs. Weeks. The Court went on to say that "[I]ndeed, even an insane person may execute a will if it is done during a sane interval, and a prior determination of insanity is not conclusive." This recognizes not only that there are varying levels of capacity, but that there is also the possibility of...