Working with Clients with Diminished Capacity

Stephanie A. Bivens

By Stephanie A. Bivens

More of your clients may have diminished capacity than you would expect. An estimated 1.5 million Americans 65 and older have Alzheimer’s disease, which is expected to increase by 40 percent within 10 years. While Alzheimer’s is not the only condition to cause cognitive impairment, it’s certainly the most noted. Several studies indicate that as many as 10-20 percent of people age 65 or older have mild cognitive impairment, and that prevalence increases with age.

Additionally, millions of Americans are affected by mental health conditions which may cause ongoing or intermittent periods of diminished capacity. One in five Americans experience a mental illness in a given year (ranging from chronic mental illness to a generalized disorder), and one in 25 (10 million) adults live with serious mental illness. Approximately 10 percent of disabled adults have difficulty with memory or making decisions due to a physical or mental condition.

What does all this mean for you as a lawyer?

ER 1.14(a) provides that “[W]hen a client’s capacity to make adequately considered decisions in connection with the 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.” That, of course, is easier said than done.

As the comments to ER 1.14 point out, a person with severe incapacity may not be able to make binding legal decisions, but a client with diminished capacity may have the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. So, what general steps can you follow to ascertain whether your client with diminished capacity can proceed with the representation?

Step One

Are there observational signs of diminished capacity? For persons with Alzheimer’s that might mean short-term memory loss, disorganization, math errors, confusion, dependence on others, or demonstrated impaired judgment. For clients with a mental health condition, the lawyer should be mindful to constantly evaluate whether the client is capable of acting in his own best interest, and adjust representation accordingly. This would be your initial impression of capacity, based upon your observations and interactions with the client.

Step Two

Are there any mitigating factors that explain the observational signs? You should always take reasonable steps to optimize the client’s capacity. For example, does the client’s medication (or lack thereof) negatively affect his cognitive functioning and would a medication adjustment make improvement? If so, can those factors be addressed and the client re-evaluated later? If not, move to step three.

Step Three

Consider the particular legal elements of capacity for the transaction and weigh the client’s abilities in light of the required legal elements (e.g., capacity to enter into a contract versus executing a will).

Step Four

If the client’s legal capacity is intact then proceed. If the client’s capacity is severely impaired do not proceed, and consider whether you should take action to protect your client as set forth in ER 1.14(b) and (c).

The sticky area is determining whether your client with mild to moderate cognitive impairment has the requisite legal capacity. You may wish to weigh the client’s abilities in the context of factors such as consistency with his values, fairness of decision, and/or irreversibility of decision.

In instances of mild to moderate cognitive impairment, you should proceed with caution unless you also happen to be a licensed medical professional trained in formally assessing neurocognitive functioning. It is generally not advised for an attorney to administer and rely on clinical tests to measure cognitive impairment. You may want to consider, with client consent, referring your client for formal clinical evaluation.

Which type of medical professional is best suited to evaluate someone for capacity for legal purposes? I typically recommend a neuropsychologist. Although somewhat informative, you likely will need more than a simple diagnosis from the client’s treating physician. Rather, a complete and well-targeted neurocognitive assessment to identify the client’s cognitive and functional abilities and limitations to understand and make decisions necessary to meet the relevant legal standard for the proposed transaction is most helpful.

In making the referral you should communicate in writing to the clinician the client’s background, reason why the client contacted you, the purpose of the referral (assessment of capacity to do what?), the legal standard broken down as much as possible, medical and functional information, living arrangements and family information, and any other factors you believe relevant.

In making the recommendation to the client for formal assessment, you might explain this is a preventative step to best protect the transaction from later challenge and/or a prerequisite for you handling their matter to ensure you are adequately protecting their interests.

You may also wish, with client consent, to speak to the client’s other professional advisers, family or close friends to obtain more information to assist you in making your determination. Clinical findings are evidence which you must then consider, along with other evidentiary sources, to support your conclusion regarding the client’s legal capacity.

Step Five

Be sure to summarize your observations, legal analysis, actions, and decision in your file.

As the baby boomers grow in substantial numbers and the special needs population expands, representing clients with diminished capacity will not just be a routine part of the elder law and special needs planning practice. For additional information, you may wish to consult the ABA’s Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, which can be found here: https://goo.gl/irX2XS.


Stephanie A. Bivens is a certified elder law attorney by the National Elder Law Foundation, accredited by the State Bar of Arizona and principal attorney at Bivens & Associates P.L.L.C., which focuses in elder law, special needs and estate planning for families, seniors and persons with special needs. Ms. Bivens is a frequent speaker providing continuing legal education for the state and county bar associations and various community and professional organizations. She serves on the board of directors for PASRS and East Valley Adult Resources Foundation. For more information, visit her website at www.BivensLaw.com or call (480) 922-1010.