Chelan Douglas Bar Association January 10, 2017

CAPACITY ISSUES IN CLIENT

RELATIONS

Christina M. Davitt,

Attorney and Certified Professional Guardian

Pornography and legal capacity Both are difficult terms to define

We tend to rely on the standard of “we know it when we see it.”

Justice Potter Stewart

Do you make capacity assessments?

4

Two Threshold Questions:

1. Whether the client has the capacity to hire the attorney.

2. Whether the client has the capacity to complete the legal transaction at hand.

Four Key Ethical issues

1. Preservation of client authority and autonomy

2. Adequate communication with the client

3. Preservation of confidential information

4. Avoidance of conflicts of interest

RPC 1.14 Client with diminished capacity

RPC 1.14 requires the maintenance of a normal lawyer client relationship even if the attorney believes that the client has diminished mental capacity.

RPC 1.14

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantialphysical, financial or other harm unless action is taken and cannot adequately act in the client's own interest,

RPC 1.14 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.

RPC 1.14 (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.

Charles Sabatino

Director , ABA Commission on Law and Aging

1. Thou shalt presume capacity.

How likely is it that the client lacks capacity?

12

Capacity

Mental capacity includes the ability to:

Think clearly

Recall accurately

Express thoughts through communication

Plan and execute actions

Is task specific on a continuum, not global

Tied to the level of risk

13

Capacity

Experience and education may be relevant

Literacy and the extent of education may be related to the ability to understand complex financial transactions

Language capacity may be relevant to the ability to understand

14

Capacity can fluctuate with:

Medication

Time of day

Events in a person’s life like grief, anxiety, depression

Chemical dependence

Mental illness

Medical condition or illness

15

Medical Conditions that Affect Capacity

Vision Loss

Hearing Loss

Strokes

Depression

Mild Cognitive Impairment

Dementia

16

DEMENTIA

Dementia is a general term for loss of memory and other mental abilities severe enough to interfere with daily life.

It is caused by physical changes in the brain.

18

MILD COGNITIVE IMPAIRMENT

Affects memory, such as for recent events, appointments, conversations

Affects ability to make sound decisions, judge the time or sequence of events need to complete a complex task or visual perception

19

MILD COGNITIVE IMPAIRMENT

Risk factors include:

advancing age

family history of Alzheimer's or another dementia; and

conditions that raise risk for cardiovascular disease.

20

MILD COGNITIVE IMPAIRMENT

Long term studies suggest that 15-20% of those aged 65 and older have mild cognitive impairment.

Alzheimer’s Association, http://www.alz.org

21

ALZHEIMER’S DISEASE

Most common – up to 80% of cases

No cure – symptom management

Most common early symptom is difficulty remembering new learned information

ALZHEIMER’S DISEASE

leads to disorientation, mood and behavior changes;

deepening confusion about events, time and place;

unfounded suspicions about family, friends and professional caregivers;

more serious memory loss and behavior changes;

difficulty speaking, swallowing and

walking.

23

ALZHEIMER’S DISEASE

Fatal disease with the general downward trend

24

VASCULAR DEMENTIA

Stepwise progression downward

DOES A DEMENTIA DIAGNOSIS PRECLUDE CAPACITY?

2. Thou shalt talk to the client alone.

Identifying who the client is

Avoiding conflicts of interest

Explaining to the client to the extent necessary to permit the client to make informed decisions regarding the representation RPC 1.14

Allows the client to effectively participate

Cannot rely on family or others just because client is “difficult”

3. Thou shalt take steps to maximize capacity.

Adjust the environment to enhance communication

Less glare, more light, less background noise

Reader glasses, pocket talkers

Large (14-16 font) with high contrast

Mid morning (not late afternoon) meetings

Go over a manageable amount of material at one sitting

Give written summary with instructions

Face the client, speak more slowly

4. Thou shalt not worship any one standard for capacity.

RPC 1.14

the client's ability to articulate reasoning leading to a decision, variability of state of mind and

ability to appreciate consequences of a decision;

the substantive fairness of a decision; and

the consistency of a decision with the known long-term commitments and values of the client.

In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

29

Capacity Worksheet for Lawyers

(ABA, 2005)

A. Observational Signs

Short Term Memory Problems

Language Communication problems

Comprehension Problems

Lack of Mental Flexibility

Calculation/ Financial Management problems

Disorientation

30

Capacity Worksheet for Lawyers

(ABA, 2005)

B. Emotional Functioning

Emotional Distress

Emotional Lability

Delusions

Hallucinations

Poor grooming/Hygiene

Letting others speak for them

Not as interactive as they had been or as you expect

31

5. Thou shalt not covet the mini-

mental state exam.

Should attorneys use clinical exams as part of a capacity assessment?

Part B of the Capacity Assessment Worksheet

What are the general legal elements of the task at hand?

Note the client’s understanding, appreciation and functioning

6. Thou shalt not end any query with

only the word “Capacity.”

Yea, the proper query shall be,

“Capacity for What?”

33

Testamentary Capacity

At the time the will was executed

the Testator had sufficient mind and memory to understand the transaction in which he is then engaged,

To comprehend generally, the nature and extent of the property which constitutes his estate, and

To recollect the natural objects of his bounty.

In re Peter’s Estate, 43 Wn.2d 846 (1953)

34

Contractual Capacity

Possession of sufficient mind to understand, in a reasonable manner, the nature and effect of the act.

Is the client capable of making a rational judgment concerning a particular transaction?

Client must understand the mutuality of the contract

The more irreversible and serious a transaction, the more capacity is required.

35

Donative Capacity

An intelligent perception and understanding of the disposition(s) made of property and the persons and objects one desires to be the objects of one’s bounty.

How does this fit in with the client’s estate plan?

36

Capacity to Appoint a Financial Agent

Understand that the AIF can transfer the principal’s property/bounty

“Can make you homeless”

37

Capacity to Appoint a Heath Care Agent

Client is of sound mind

Acting freely

Look at the Informed Consent standards

38

Informed Consent

The ability to understand one’s current medical condition, the possible treatments, the risks associated with those treatments and their consequences.

The ability to use relevant information to make a rational decision

The ability to communicate one’s decision

39

Guardianship Capacity Standards

RCW 11.88.010(c)

Legal, not a medical decision.

Age, eccentricity, poverty, medical diagnosis alone not sufficient to justify a finding of incapacity

40

Guardianship Capacity Standards

RCW 11.88.010(1)

Demonstrated ability to adequately provide for nutrition, health, housing, safety, finances or property

Sufficient risk of personal, financial harm

Guardianship and Testamentary Capacity

Appointment of a guardian does not preclude testamentary capacity.

Estate of Alsup, 181 Wash. App. 856 (Div. III) (2014)

Tailor guardianship orders to the ward’s residual capacity.

42

In re Denny, 195 Wash, App. 1022 (Div. I

2016) (unpub).

Ward retained specific rights:

Engage an attorney to complete estate planning documents

Consent to medical treatment (with family help and notice to the guardian)

Whom shall provide care and assistance

Making decisions regarding social aspects of her life

Task Specific FactorsThe more serious the concerns:

The higher the function needed:

Is the decision in keeping with the client’s long term values and commitments?

Is the decision objectively fair?

Is the decision irreversible?

Can client articulate reasoning that led to the decision?

Is the decision consistent with time?

Are the primary values consistent over time?

Can client appreciate the consequences of their decision?

7. Thou shalt seek the big

picture, with all of its variability,

intermittency, and nuance.

8. Thou shalt honor thy

client’s own considered or

habitual standards of behavior

and values not standards and

values held by you or others.

46

9. Thou shalt honor thy client’s confidentiality and

autonomy even in the face of incapacity.

Reasonable Protective actions under RPC 1.14 may only be taken when:

1. Client has diminished capacity,

2. is at risk of substantial physical, financial or other harm unless action is taken and

3. the client cannot adequately act in the client’s own interest.

10. Thou shalt plan ahead for incapacity to ensure that one’s wishes are respected.

48

Approach to clients (Worksheet Part D)

Presume capacity

Look for signs of diminished using capacity assessment worksheet

If no issues –proceed with normal client relationship

If yes, maximize capacity

Re-assess

If mild, may continue with extended counseling

If more than mild – consider a consult with a clinician (curbside) or a referral (HIPAA release)

Consider whether protective action is required

49

Protective Actions under RPC 1.14

Can client appoint a Power of Attorney?

Get a GAL appointed for the litigation

Referral to clinician for evaluation

Need client consent

Specific referral – how does the clientpresent, what issues are there, whatquestion does the attorney need answered,what is the legal task at hand?

50

In re the Matter of Disciplinary Proceedings

against Eugster, 166 Wash. 2d 293 (2009)

18 month’s suspension and fine of $13,500resulted when

Attorney failed to investigate a client’salleged incompetency before filing aguardianship petition against her

He did so in order to get control of her estate

He disclosed privileged information withouther consent RPC 1.6

He refused to turn over her file

51

In re the Matter of Disciplinary

Proceedings against Eugster, 166 Wash.

2d 293 (2009)

Attorney knew client had had a “sanity” or mental status exam within six months of filing the guardianship petition and was determined to be competent

Attorney thought she had capacity six months prior to the filing when she engaged him for estate planning

Attorney failed to explain why he decided she lacked capacity on the same day she wanted to discharge him and retain new counsel

52

Intake Tips

Who selected you, who made the appointment

Draw a family tree and the familial relationships

What are the client’s concerns?

Education and business experience of family members

Drug, criminal or medical issues in the family

Review prior documents or ask why there aren’t any

Ask the Audience….

53

Bonus Tips – Avoid clients who:

Want to include beneficiaries in estate administration

Are dependent on a third party

Are uncontrolled fiduciaries or beneficiaries

Are hostile or vindictive fiduciaries or beneficiaries

Are seeking an unusual disposition of the estate

Are potentially incapacitated

Spouses, especially a second marriage with disparate assets between spouses

Beneficiaries with alcohol, drug or other dependencies

Existing or anticipated family conflict

55

Cases

Estate of Alsup, 181 Wash. App. 856 (Div. III)(2014)

In re Gwinn’s Estate, 36 Wn.2d 583 (Wash. 1950)

In re Kessler’s Estate, Anderson v. Whatmore, 35 Wn. 2d 156 (Wash. 1949).

In re the Matter of the Disciplinary Proceedings against Stephen K. Eugster, 166 Wash.2d 293 (2009)

In re Peter’s Estate, 43 Wn. 2d 846 (Wash. 1953).

56

References

Alzheimer’s Association: http://www.alz.org

American Bar Association/American Psychological Association, Assessment ofOlder Adults with Diminished Capacity: A Handbook for Lawyers (2005),http://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf

Flowers, R. and Morgan, R. (2013) Ethics in the Practice of Elder Law, AmericanBar Association Publishing.

Hammerele, V. 2013 WL 4188063, Ethics for Trust and Estate Practitioners:Leading Lawyers On Identifying and Avoiding Conflicts of Interest andUpholding Rules of Professional Conduct: Avoiding Malpractice, ThompsonReuters.

Kozak, B. (2016) The Forgotten Rule of Professional Conduct – Representing AClient With Diminished Capacity, 49 Creighton L. Rev. 827

57

References

Morgan, H. Decisional Capacity – A View From the Field. The Center ofGeriatric and Family Psychiatry, Inc. Glastonbury, CT (2016).

Johns, A. (2004) Older Clients with Diminishing Capacity and Their AdvancedDirectives, 39 Real Prop. Prob. & Tr. J. 107

Ross, E. and Reed, T. (2016) Will Contests, §6:2. The Greenwood-Baker Ruleand the psychology of testamentary capacity, Will Contests, 2d Ed. June 2016Update.

Stasi, T. (2012) Reform That Understands Our Seniors: How InterdisciplinaryServices Can Help Solve The Capacity Riddle in Elder Law, 45 U. Mich. J.L.Reform. 695

Tegland, K. RPC 1.14 Client with Diminished Capacity, 2 Wash. Prac., Rules Practice, RPC 1.14 August 2016 Update, Westlaw, Thompson Reuters.

Nancy says good bye!Thank you!

OGDEN MURPHY WALLACE

OMWLAW.COM

Christina M. Davitt

Attorney and

Certified Professional Guardian

cdavitt@omwlaw.com

(509) 662-1954