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The Ethics of Dealing with Capacity and Mental Health Issues in the Practice of Law

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The Ethics of Dealing with Capacity and Mental Health Issues in the Practice of Law

Although lawyers do not receive formal training on how to assess capacity, they make capacity judgments on a regular basis. Lawyers should be familiar with the signs of “diminished capacity” that may be apparent when meeting with a client and how to address such a situation. Lawyers must be aware of the ethical guidelines for assessing capacity as well as the standards of capacity for specific legal transactions under state statutes and case law.

Presenters

Carolyn Wolf
Executive Partner
Abrams Fensterman, LLP

Transcript

- [Instructor] Okay, good morning, everybody and good afternoon, depending on what time zone you're in. Welcome to The Ethics of Dealing with Capacity and Mental Health Issues in the Practice of Law. This is a topic that comes up frequently among lawyers who don't practice in a similar field to mine, which is a mental health law practice. We deal with capacity on a daily basis on issues such as guardianship, ability to give consent or not to treatment, issues of someone lacking capacity resulting in being dangerous to themselves or others or at risk. And so, again, this is something we deal with really on a daily basis, but other lawyers and other practices often are not so familiar and hence doing a program today on dealing with clients who have mental health issues that may impair their ability to have capacity, to understand how to sign documents, how to move forward with their legal questions or their legal cases and so on. So, what are we gonna talk about today? Basically, we're gonna talk about the fact that lawyers don't receive any formal training on how to assess capacity, they do actually make capacity judgements on a regular basis. We do in everyday life when we speak to people, when we interact with people, understanding as best we can, whether they have the ability to understand what we are talking about and to make judgements and decisions on their behalf. Lawyers need to be familiar with the signs of diminished capacity that may be apparent when meeting such a client and how to address that type of situation. Lawyers also need to be aware of the ethical guidelines and requirements for assessing capacity, as well as the standards of capacity for specific legal transactions, under state statutes and case law and that's in large part what we'll be talking about today. So, as a course overview, we're gonna talk about signs of diminished capacity that a lawyer may observe. Ethical guidelines for assessing capacity under the model rules. Standards of capacity for specific legal transactions, such as signing a contract, a matrimonial agreement, a will, a trust and so on. And relevant mental health law tools that we use in order to address this issue of capacity or lack thereof. So, when we talk about capacity, we need to consider two questions. One is, does the potential client have the capacity or the mental ability to sign a retainer agreement for my services? In other words, capacity to enter into a contract. So, when a client comes to you and says, I have X, Y, Z problem, I have an issue with my boss, I have to sign a contract, I wanna get a divorce, I need somebody hospitalized, whatever it might be, we have to think about the issue of capacity of that client to first and foremost, enter into a retainer agreement or a contract with us so they understand why they're coming to a lawyer, what it is a lawyer does, what specific requests or expectations they may have of an attorney, and they understand all of those parameters and have the ability to contract with us. So, that is something that we need to think about right away. And then the other question is, does the potential client have the capacity to complete the requested legal transaction? So sometimes we have clients who can enter into a retainer agreement, believing they understand what it is they're asking us to do, what their expectations are, what can we offer them in terms of our legal knowledge and expertise. But down the road, does that client have the ability to complete and participate in that ongoing legal transaction? It's not only the initial retainer agreement upfront, but can they work with us along the way? And can they get to the point of completion of whatever it is their legal matter entails. So, as I said earlier, there is an increasing prevalence of capacity questions. The incidence of cases in which capacity is an issue is increasing over the years, in part due to an aging demographic, our clients are older, living longer, having issues that go along with longevity, family issues, personal issues, medical issues, issues of where they were living and moving to another place, whether they have the funds to continue living the style that they wanna live and so on. There's also we're seeing a greater incidence of dementia. Now dementia doesn't automatically mean someone lacks capacity, but it can be a factor in whether a person has the mental ability or the capacity to enter into a contract, continue along with the legal matter that they've asked us to perform and so on. So we have to be careful when we talk about dementia to not automatically equate dementia with capacity. Sometimes people can have capacity, even though they may have a diagnosis of dementia and dementia is a spectrum, so someone may have early dementia or more advanced dementia and how that impacts their capacity or decision making as well. Also people with dementia can have periods of which capacity waxes in wanes. Usually early in the morning, people are more with it, have more capacity than later in the day as the day wears on and the demands of the daily life take hold often people are reduced in their ability to take in information, process it, and make decisions. Again, we have to look at each individual individually, if we are talking about issues of dementia or Alzheimer's and so on. There are also, we're seeing an increasing number of cases involving serious mental illness, people who have diagnoses such as schizophrenia, bipolar disorder, major depression, anxiety, and so on. Substance and or alcohol abuse, drugs and alcohol. Autism spectrum disorders, we're seeing an increase in diagnosing people with autism spectrum disorders and how that impacts or not on the issue of whether they have capacity to enter into a legal retainer agreement and then participate in a legal matter as it proceeds through its life. Dual diagnoses, people can have serious mental illness and substance use disorders, access to personality disorders and related mental health concerns. People can also have mental health concerns along with medical issues. People can have neurological challenges, people who may be in a car accident and have a traumatic brain injury. Or people who have made, who may have experienced other types of accidents or medical challenges that result in some sort of brain disorder and a challenge to the capacity for them to be able to make different decisions. Now, in general, the law has a presumption of capacity. For a typical adult client, capacity will be presumed. Someone walks into your office, they say they have a legal matter, they're conversing with you, there's a back and forth conversation, what is their legal matter? What services can you offer back and forth? And we presume that the person has the ability to understand why they're there, enter into a retainer, continue along working with you with their matter and bring it to a conclusion. It's really only when a lawyer observes signs of a questionable capacity that the initial determination becomes necessary. And we'll talk about what are some of the signs of people who are lacking in capacity as we proceed in this program. We wanna caution you to remember to be sensitive to stereotypes about aging, mental illness, use of alcohol, drugs, including the assumption that aging and mental health issues equal diminished capacity, that they're synonymous 'cause that's not always the case. And again, capacity can wax and wane can be more prevalent one day to the next will be dependent on what's going on with that person, not only specific to any aging or related dementia diagnoses, but to having a mental illness, use of drugs or alcohol and so on, which can impact capacity in a positive or negative way. So again, we have to look at each case on its phase and each individual individually. When observing signs of diminished capacity. So in the course of an interview with a prospective client, or as you're meeting with a client along the way as their case is progressing, the lawyer needs to be aware of specific cognitive, emotional, or behavioral abnormalities that will serve as what we call red flags, listening to someone the way they're speaking, maybe they're deviating in their attention span, maybe they're saying things that are out of the ordinary for the usual conversation you're having with them, maybe they come in sweating profusely or not being able to make eye contact or not being able to stay on point. And again, we'll go through more of the specifics, but I encourage lawyers to trust their gut when it comes to being concerned about a red flag or an issue of capacity, if it doesn't feel right or seem right to you, if it seems off, if it seems unusual, trust that instinct, that will usually be the correct answer. Family or those who many accompany a client can raise awareness or provide insight to the lawyer as well. Sometimes you'll get a call from a family member saying, my mom has just been diagnosed with dementia and she's gotten more forgetful, she often doesn't know where she is at a particular time, but then there are other times where we can have a regular normal conversation. So I just want you to be aware of that possibility and to understand what's going on in the background. Or we have families who call and say, their loved one has just been diagnosed with a mental illness or on the autism spectrum, or has had a serious medical challenge that they're noticing has resulted in some sort of diminished capacity. We do get into the ethical issues of whether we can do to the attorney client privilege, speak with families, it's important to try and get the support and the consent of a client for being able to speak to family, but as in the healthcare system, with regard to the healthcare confidentiality, the HIPAA laws, there's nothing in the law that says we can't listen. So sometimes we may not be able to have a full blown conversation with a family member without the consent of the client, but we may be able to just listen to the information that the family is giving us and that's very important for us to take in, make note of, and have in our minds when we speak to or meet with a client again, that can be helpful in observing signs of diminished capacity that we might not pick up on unless we had the background from a family member. So, what are some of the red flags or signs of diminished capacity? Well, memory loss is a very loud layering red flag. Someone who doesn't remember they were in your office last week, they had a conversation with you about their matter, they were here to file a lawsuit against someone, they don't remember why they came to you, the fact that they wanted to file a lawsuit, they don't even remember who the lawsuit was going to be filed against and so on. So memory loss can be certainly a red flag that we need to pay attention to. There's also the issue of short term and long-term memory. I'm told by the professionals, the clinical professionals with whom we work that most people lose short term memory before they lose their long term memory. So a client may be able to say, six months ago I was in a car accident and I remember exactly what happened and I wanna sue the people who hit my car here are the issues of my insurance that I've had for decades. But then in continuing to converse with them, we may get to the point where they don't remember coming to your office last week, they don't remember signing a retainer agreement, they don't remember telling you that they remember the car accident, but don't really remember why they're here in your office and wanting to file a lawsuit against someone. So again, it's very important to be specific in your overview of memory loss, taking into account short term versus long term memory and the extent of that memory loss. It may not be important for them to remember what they had for lunch last week or how many times they visited your office, but it is certainly very important for you to understand, do they remember why they came, what the retainer agreement is about, what the lawsuit is they're asking you to file, what their specific legal matter is. They may be having communication problems, difficulty staying on topic. They came to file a matter with you and they're talking about all sorts of other things, or they're repeating the same thing over and over. I had a car accident and I wanna sue the person who hit my car. A few minutes later they said, oh, and by the way, I had a car accident and I wanna sue the person who hit my car. You will pick up on that pretty easily and pretty quickly if somebody is being repetitive or certainly we can pick up on someone unable to stay on topic. You're a lawyer, they're in your law office, they're talking about their matter, and all of a sudden they switch to, when my daughter was five years old, she was playing on the playground, or my son is majoring in math in college and so on and so forth. Be careful though, because sometimes we switch topics, we ask about the person's family background, their children, depends on the relationship that we've had with that client. But again, use your gut when you are thinking about whether they're staying on topic and having difficulty with that or not and whether that's normal change of topic conversation. Also a red flag, lack of mental flexibility, people who are unable to understand or acknowledge multiple options or viewpoints. So, somebody comes to your office and says, I wanna divorce my husband. And you start to ask them the specifics of when were they married and what's leading to them wanting to be divorced and so on. And that might be the normal course of the conversation that you have with that client, but they really don't show an ability to understand or acknowledge the options or viewpoints that you might give to them. Maybe they should go for marriage counseling first, maybe you wanna do a separation agreement before a full blown divorce, maybe there are other issues going on in their family, children, etc, and they're unable to understand or take in those different options or viewpoints, doesn't mean they have to necessarily agree with them or wanna utilize them, but you wanna see if somebody can understand and at least acknowledge there might be other options, or we may be able to look at something in a different way. Calculation problems, and certainly this will come in very strongly for those of you who have practices that deal in calculation, whether it's a trust or a will or it's setting up other documents to give people money or to lend people money, or it's an issue of paying loans or being sued for lack of ability to pay rent and so on. And I always stress to attorneys when I give this talk, we don't have to be math geniuses, certainly I am not. But you again, will be able to tell the difference between somebody who can't do a basic calculation, whether spending this much money on a lawsuit is better or worse than just taking the loss, for example. So whether people can understand those simple concepts in terms of, it's gonna cost you $100,000 for us to bring this lawsuit and you're suing somebody for $40,000. These are things that I think we can all understand, even if we are not mathematical geniuses or going back to college to get a degree in mathematics, but calculation issues that I think we can all understand. Disorientation is another red flag relative to space, time or location where they, sometimes people will come and they don't even know they're in a law office, or they don't even know that they're speaking to a lawyer, they think they had an appointment at 10:00 in the morning and here it is, or they show up at your office at two o'clock saying, I had a two o'clock appointment when in fact their appointment was at 10 o'clock or they're looking around your office saying, this doesn't look familiar to me, even though they may have been in your office, four, five, six or more times. So again, disorientation is something that we don't need a degree in psychology or psychiatry to pick up on, we can see when somebody appears disoriented, they're unsure of where to sit, why they're there, what's around them, and so on. Another red flag is emotional inappropriateness, wide range of emotions going from inappropriate laughter or crying to the opposite. People can certainly get emotional in our offices, it happens all the time, I have a mental health law practice. I'm sure you can all imagine the range of emotions that our clients come with. These are families who are facing either a new diagnosis of a loved one with a serious mental illness or they're coming because they've discovered their loved one has a drug or alcohol problem, whatever it might be, those of you in a matrimonial practice, I'm sure you see that range of emotions, the anger, the guilt, and so on. We can differentiate between unappropriate, emotional response, being upset, crying, and so on, but you'll also be able to, I am sure, pick up on emotional inappropriateness, you're having a serious discussion with someone and they start to laugh hysterically, it's just not connecting to the subject about which you're speaking or you're going along, everything's fine, they're understanding, and all of a sudden they burst into tears. And again, crying can be inappropriate or it can be appropriate, we know the nature of our own practices, we know what is appropriate or not, and connecting it to the time. You may be talking about the weather and somebody bursts into tears. And again, sometimes it's not a one shot deal, sometimes people react emotionally for that particular time and conversation, but it may never happen again. Or it may be a situation where this is ongoing, every time you meet with the client, they're laughing hysterically, even though you're having a serious discussion and so on. So again, trust your gut in feeling and understanding whether that emotional response is appropriate or inappropriate to the conversation that you're having. And then there are the behavioral signs, people who are delusional, they think that they were followed to your office, the FBI's been following me since I left my house and came to your office. As I look out the window, I'm sure they're sitting in the parking lot, watching me, thinking about me. Any beliefs that are unlikely to be true, may in fact be paranoid or delusional beliefs. Now, that's not to say that somebody may not being followed by the FBI and what the experts have told me over these many years of my mental health practice, that being able to differentiate what's likely to be true or unlikely to be true, and the amount of time that it takes over someone's life. So if somebody comes in and says, I have a feeling I'm being followed, maybe that's a one and done, maybe they just had that feeling today or they're concerned that they're in a matrimonial and maybe they're soon to be ex-spouses, got a private investigator and so on, that's different than taking over their life everywhere they go, they believe someone's following them, listening to them, they're looking at your lights, believing the lights are watching them, they're asking you to turn off devices because somebody may be listening in and so on. Again, you'll be able to judge I'm sure what may be paranoid and delusional beliefs from what may be reality in someone's life. Poor grooming and hygiene. This can also be a red flag and often it's a change in grooming and hygiene that will tip you off to the idea that somebody may be having an issue of lack of capacity. They came in looking neat and clean and appropriately groomed, having the appropriate hygiene. And over time as you meet with them, that you can see that sliding backwards or diminishing. They may talk about it, they may not, they may come in and say, I was just on the soccer field with my kids and sorry, I didn't have a chance to shower and change, or they're coming to your office very disheveled, for the men haven't shaved in several days, for the women, hair in disarray, whatever it might be. Again, it's something to think about and pick up on as you are concerned about whether this is a problem or not of capacity. What are some of the mitigating factors when you're assessing capacity? So we've talked about red flags and being concerned about certain red flag behavior, but there may be an explanation for that, and in fact, it may not equate with a person's lack of capacity. So what are some of these mitigating factors that in fact can influence a client's behavior in your office? Well things such as anxiety, grief, depression, recent stressful events, or a history of overall stress. And depending on the type of practice that you have, these particulars may wax and wane may be more prominent in one instance and not another, just in general, due to the pandemic, we're seeing a huge increase in people suffering from anxiety or depression, many people lost loved ones, so grief, trauma, all of these things can go into why people may seem less than who they were before or experiencing less capacity than maybe earlier on, but there is a very real reason for that and it's something important for you to explore, for you to observe. Again, you don't have to go back to school and get a degree in psychology or in psychiatry, but our life experiences, I believe go a long way to assessing whether somebody has anxiety, for example, they're very fidgety, they can't make eye contact, they're looking very nervous, grief certainly if they come and tell you, I've just lost a loved one or a close friend, or had experienced some traumatic event, depression, people look sad, they look despondent, they may say things like, I'm not quite sure why I'm still here, things are hopeless. Again, relaying recent stressful events, death of a loved one, loss of a job, financial difficulties, or a history of overall stress. And again, with the pandemic going on as long as it has, this is not a surprise that people will have a history of overall stress. We've all managed it and confronted it in various ways, but people are much more stressed. The economy, politics, the pandemic, all of these things speed into overall stress, which may be normal and have nothing to do with a person's capacity to enter into a retainer and follow along with you as you handle their matter, or it may not. There are medical factors that enter into this also, adverse reaction to medication, interaction of multiple medications can cause people to lack capacity, loss of memory, other neurological factors due to a medical issue. And again, it's important for us to at least ask about that. I don't know that we have to go into every minute detail of what their medical issue might be, but having awareness that they've just been diagnosed with diabetes, or have had a recent heart attack, or whatever it might be, and are they on any medication, does that medication in their view impair their ability to stay on point, understand that conversation, keep to the memory that they've always had, and so on? Other mitigating factors, normal fluctuations in mental ability in older adults. As I said earlier, sometimes people are more alert in the morning, they've had sleep, they've had rest, the sun is out, it's daytime, people seem to be more alert in the morning and tired as the day goes on in the afternoon and certainly into the evening where it starts to get dark, things are winding down, they've had a whole day of whatever is going on in their life. These are things that I think we all experience, but if for some reason we are concerned about a person's capacity, and as I've said, also along the way, capacity can wax and wane, we may wanna meet with the client earlier in the day because they're able to focus better, they seem brighter, they're more connected. We've noticed that if they have an afternoon or an evening appointment, it's not that way. And we wanna assess capacity in the moment for which we need them to sign papers or understand a discussion or express to us what their legal concerns are. Hearing or vision loss. We need to pick up on whether that's a problem. We may think somebody isn't able to focus or understand what we're saying, and it may be an issue of they're just not hearing us. And again, it's important if we think that's what's going on for them to express that or to have family members who may be with them say, mom's hearing is not what it used to be, or we're on our way to get hearing aids for dad, he's not able to hear the way he used to. Vision loss, sometimes people can't see the papers that we're putting in front of them and it may be to eyesight or vision, not so much, they just don't understand the paperwork that we've put in front of them. So again, you can usually tell by the way people are holding the pages close to their face, far away may bring up the issue of having some sort of vision loss and so on, you need to pay attention to that. Education or socioeconomic background. So it can vary from gender to personality, lifestyle choices, values, culture. Culture is a very important aspect of assessing someone's capacity or lack thereof. Different cultures have different spacial requirements or things they're comfortable with, language, where they're seated, how they perform when they first come into your office, how they express their emotions, all of these things. So we do need to be cognizant of people's differences whether women react to a discussion differently than men, it may not be a capacity issue it may just be, women see things differently than men do. A personality types, some people are very rigid, wanna stay on point, even though there may be other points that need to be made, it may not mean they lack capacity, it may be just how they're wired and how they think. Lifestyle choices, values, and so on. So, we wanna be cognizant of these when we're assessing the issue of whether they in fact truly lack capacity, or have an inability to really understand and process the information that's being given to them versus something else in their personality, their values, their culture, and so on. Very important is documentation. I'm a former hospital administrator and risk manager, documentation is my biggest soapbox. If the adage, if it isn't written, it didn't happen is very true. And unfortunately, people learn that the hard way, they have a conversation, they've talked about it, they've thought about the issue of capacity, they either poo-pooed it or they said, no, that's not possible, or they've come to the conclusion that a client really does lack the capacity to engage in an attorney client relationship, but they don't write it down. And then the client comes back and says, why didn't you take my case? Why didn't you follow up on my instructions? Why didn't you do whatever? So it's really important that the attorney document his or her observations and assessment regarding client capacity. Now be very careful, we don't wanna look judgment or critical, but we want to talk about the observations and the assessment that we've made. So, utilizing the red flags that I've outlined for you can be very helpful, talk about memory loss, talk about inability to maintain eye contact, talk about going off on all sorts of esoteric subject areas, different and apart from why they're in your office. Again, when you document though, you wanna be very careful that your documentation is factual and objective. So, we don't wanna make assessments regarding the type of dress that somebody's attired in, or whether they're wearing the proper shoes, or sitting in their raincoat when it's a sunny day outside, whatever it might be, we don't wanna make a judgment and document that, but we wanna document based on the observations and the capacity concerns that we may have based on what we've talked about in this discussion, it has to be factual, objective, and we wanna make sure that it's kept in our file should there be a challenge to our assessment of whether a client has capacity or not. It's also important to summarize key observations and conclusions that you're making. And it's important to do this over time. People have a bad day, they may show up in your office and be very flustered and forgetful, they're just having a bad day. The next time they come to your office, they're on point, they're focused, they know why they're there. So we don't wanna make these capacity or lack of capacity judgment as a one and done, we wanna do it over time to see how this plays out. If every time they come to your office, they're forgetful, they don't know why they're there, or they're worried about people watching them or whatever it might be, that's over time and you wanna document that as opposed to somebody who's in your office for the first time or a second time and just seem to be off. You can't go from zero to 100 when you're assessing capacity, because it does change over time and in a circumstance. And so, you wanna see the whole picture and see the picture as a whole. You also don't wanna make summary judgements, you wanna make a judgment based on specific observations of a specific person. So what are some of the action steps when you're following an assessment of a person's capacity? Well you wanna proceed normally if capacity intact, you wanna proceed with great caution if you suspect more than mild capacity problems. And if you suspect severe problems, you may decline representation, you may withdraw from representation, or you may wanna refer it to somebody who can deal with the capacity issue, you may wanna suggest that they see a medical professional, or a clinical professional and so on. And you may wanna consider a medical or mental health referral. Now this can be dicey, some people are able to take in that information and accept it more than others, some people may feel threatened by you wanting to take those steps. So again, trust your gut instincts, use your common sense, your judgment and experience when you think about how you're going to proceed, if it's a situation where you suspect more than mild capacity problems. And again, based on the red flags we talked about and the mitigating circumstances, if you suspect a severe problem, then you may need to take some time to figure out whether you're just gonna decline or withdraw from that representation. And again, I can't stress enough, documentation is critical. What went into your thinking, your judgment, what examples specifically can you give while you're documenting this for suspecting or believing that someone is lacking in capacity, use quotations, the client said to me, "I don't know why I'm here." Or I've been here many times in the past, this looks like a different place. Whatever it might be, it's very helpful often to use quotation marks in your assessment and in your documentation. The ethical guidelines for assessing capacity, Model Rule 1.14 of the ABAs, Rules of Professional Conduct, it specifically concerns clients with "diminished capacity" and suggests a duty to make informal capacity judgments in certain cases. So basically what we've talked about all along is the idea of suspecting a lack of capacity or diminished capacity, and having a duty to make a professional capacity judgment based on our area of practice and experience. For those of us in the mental health field, we do this all the time. For those of you who have a litigation practice, you may not. And so it's important to understand the limits of your ability to ascertain capacity or not, make an informal judgment and then decide what to do going forward. But the ABA Rule does say that we have some duty to assess it and to manage it the best way we can. So what are the ethical guidelines for assessing capacity? Factors to consider and balance when determining the extent of a client's diminished capacity. Well, we need to look at the client's ability to articulate reasoning leading to a decision. The client, according to the model rule should be able to state the basis for his or her decision. I'm doing a will, and I know why I wanna cut out my niece or nephew or my daughter or son, and be able to articulate why that is. We may not agree with that decision, we may not like the decision, but in our opinion, if it's a reasonable basis for that decision, that's the client's call not our call. And it may in fact, show us how much capacity a person has versus a lack thereof. The ability to appreciate consequences of a decision. If you're going to cut out your child from your will, they'll be left penniless if you pass away, is that something you really wanna do? It may or may not be putting in other language in a will or a trust that may be unreasonable under the circumstances in your opinion, it may be reasonable to them and we want to see if they can articulate and understand the consequences of that decision. Again, we may not agree with it, we don't have to agree with it, but we need to be comfortable that they understand what may happen if they make that decision. The consistency of a decision with the known long term commitments and values of the client. Do they come every time and say, yes, I still wanna cut out my child from an inheritance, or yes, I still wanna continue on with this divorce, or yes, I continue to wanna set up a trust because my child can't manage money. Whatever it might be, it's important if you suspect a lack of capacity or diminish capacity to not jump into doing something right away with a client, but consistency, have the discussion this week, let it boil for a few few days or weeks, come back and have the discussion again. People who have capacity more often than not will be consistent over time. Again, use your gut instinct and your judgment to know whether in fact that's a consistent decision, they understand the consequences and the short term versus long term benefit in making your determination. If you think somebody may be lacking in capacity. Model Rule 1.14 of the Rules of Professional Conduct states, when a client's capacity to make adequately considered decisions in connection with a representation is diminished whether because of minority, meaning their minor children, mental impairment, or for some other reason, the lawyer shall as far as reasonably possible maintain a conventional relationship with a client. So here language is very important, it talks about connection with a representation is diminished. It may not be zero, it may not be 100%, but it's less. And again, maybe we wanna meet with the client different times of the day, we may wanna ask different questions in a different way and so on. So, when it's not an obvious impairment, then the lawyer shall according to the model rules, as far as reasonably possible, maintain the conventional relationship. Again, people are deemed to have capacity unless shown otherwise reasonable is certainly language we all deal with on a daily basis, it's the legal standard for most things and we will know based on our judgment and our experience, whether it's reasonably possible to maintain that relationship, or does it put the client and us legally at risk to continue with that relationship. B of that rule when the lawyer reasonably believes 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, which may include consulting with individuals or entities that have the ability to take action to protect the client, maybe family, maybe other professionals, and in appropriate cases, seeking the appointment of a guardian ad litem or a conservator or guardian depending on the state in which you practice. Three standards of capacity for specific legal transactions, presumption of capacity unless the individual has been adjudicated as incapacitated either in the context of guardianship or conservatorship, the party challenging their capacity puts forward sufficient evidence, then incapacity to meet a requisite burden of proof, capacity to enter into a contract under the principles of contract law, an individual lacks mental capacity to enter an agreement and thus retain counsel, if he's unable to understand in a reasonable manner, the nature and consequences of the transaction, or he's unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of his or her condition. That's the New York Restatement of Contracts, it's important for you to know what your own individual state restatement might be saying. Capacity to enter into a contract, you wanna ask your clients some of these questions. Do you know who the other party to this contract is? What is that person's relationship to you? Do you understand the terms of the contract? Describe the terms of the contract as you understand them. And again, it doesn't have to be as a lawyer, but in lay terms as best they can. Do you agree with the terms of the contract? And do you understand the consequences of non-compliance with this contract? Contractual capacity in New York is the standard used to evaluate a person's capacity is their ability to understand the nature and consequences of the transaction and make a rational judgment. In most states, the standard for mental capacity is whether the party understood the meaning and effect of the words comprising the contract or transaction. Capacity to retain counsel. The retainer agreement falls within the scope of contracts is governed by contract principles. If an individual lacks capacity to retain counsel, he lacks sufficient mind and reason for a full and clear understanding of the nature and consequences of making the contract at the time it is made. And that, again is something that you need to know, pursuant to your own state law. What are some of the mental health law tools related to capacity? Advanced directives, durable power of attorney, healthcare proxy, living will guardianship or conservatorship depending on your state, use of mental health or medical experts. Advance directives, these are legal documents that contain an individual's prior expressed wishes regarding financial affairs or medical treatment that must be executed while the individual has the requisite mental capacity. And in some states, an advanced directive will only come into being if and when a person is deemed to lack capacity. Healthcare proxy, must be a competent adult or a living will, same idea, the person has to have mental capacity to execute these types of advanced directives. Capacity to execute a power of attorney, the same, the ability to comprehend the nature and consequences of the act of executing and granting or revoking or amending or modifying a power of attorney, any provision in a power of attorney or the authority of any person to act as agent under the power of attorney, the person must have capacity in order to understand what they're signing, who they're giving over power to under what circumstances and the nature and consequences of doing that type of advanced directive. Capacity to execute a will or a will to be valid is I'm sure you all know the test data must have testamentary capacity or mental capacity. The degree of mental capacity is required to sign a valid will is lower than it is to enter into a contract. Most often the individual lacks testamentary capacity if he's unable to understand the extent and nature of his property, the natural objects of his bounty, and the disposition of that property, and is unable to relate these elements to one another and form an orderly desire regarding disposition of the property. Do you know what you have? Do you know who you wanna give it to you? It may be a discussion of why or why not. And what exactly is it you wanna give to particular people, consequences of not doing that, and so on. Again, it will go back to what we've talked about throughout this presentation, the issue of are we seeing, or hearing red flags? Are we concerned about whether this person really doesn't understand what property they have, who they wanna give it to, what other things they may wanna leave in their will, what language they may wanna use and so on. So again, using our experience and judgment, we can come to a conclusion in most cases as to whether they do have the capacity to execute a will. And we wanna call out the emotional part of this from the true capacity or lack thereof part of this that I'm sure we've all seen if we've executed wills at any time in our careers, or we do that as a major part of our practice. In terms of guardianship and conservatorship, which we've discussed at length in a separate CLE course through Quimbee, guardianship or conservatorship is a legal proceeding by which a court appoints and oversees a legal decision maker or another adult due to incapacity is unable to manage their affairs. Very important in this area is, know your state law. Diminished capacity in State Guardianship Law New York, for example, starts with a presumption of capacity, the burden of proof is on the party, bringing the petition to establish sufficient diminished capacity to justify the appointment of a guardian or not very similar in most states. Again, it's very important to know specifically in your state, what capacity is defined as, and whether there is a presumption of capacity, what the burden of proof is on the party bringing the petition and how we assess from a legal perspective capacity to manage a person's personal needs or property management, healthcare, and financial decision making. So in terms of diminished capacity and guardianship, New York, for example, has a guardianship law that recognizes capacity is not always an all or nothing phenomenon so it's therefore enacted language which allows for "A limited guardianship or a special guardianship" in which the guardian is assigned only those duties and powers that the individual is incapable of exercising. So for example, somebody may understand how to manage their finances, bank accounts, dealing with investments and so on, but may not be able to understand their need for a medical intervention or a mental health intervention. They may lack the insight or the judgment specific to where they need to live or how they may keep their home, or services that might be available to them as such as case management or geriatric care manager. But again, may be able to understand and deal with the financial ends of things in their life. So, as New York has laid out as many other states, again, it's not always all or nothing, but it has to take into account the person's limitations in one area or another, it may not be pervasive, it may be day to day, and so, with an eye towards the least restrictive alternative, we may wanna put forth a temporary guardian or a limitation on guardianship, or sometimes a special guardianship where the guardian has only those duties and powers that the individual is incapable of exercising for themselves. And finally, the use of mental health or medical experts in cases where we are concerned about whether a person has capacity, it's often helpful to use mental health or other medical experts in making that determination. We need to get the consent of the client in order to do that in most cases or someone legally authorized, or we may have a system in our practice to just get advice from a clinical professional based on an overview of what's going on with the person and the concerns that we may have. There are times when I've reached out to psychiatrists or psychologists or neurologists, depending on what my concerns might be to ask generally if someone presents with a particular limitation, memory, psychotic symptoms, a diagnosis, an accident, a trauma, grief issues, whether in fact that could result in somebody's diminished capacity or lack of capacity. Again, we wanna keep in mind that the legal standard is reasonableness. We don't have to go back to medical school in order or graduate school to get a degree in any of these areas, but we have to use our best legal judgment in determining whether somebody has capacity based on a reasonableness standard, our experience, our judgment, our experiences in this practice or in another practice, whether the person does have the ability to engage with us, work with us over the long term, work with us continuously in order to bring their matter to a close or a conclusion, and that's as much as we can do. Again, we don't have to perform as a clinical professional would perform in terms of our assessment, but we do wanna use our gut instincts, again, our judgment, our experience in determining whether somebody has capacity to move forward. And again, the most people are deemed to have capacity unless it's shown otherwise. And based on the red flags that I've outlined and some of the details that I've given you, I believe you have the tools in order to at least have that conversation, have those thoughts, rule in or rule out whether somebody may or may not have capacity and seek professional help, whether it's from a colleague or another professional in making a determination for yourself, whether to move forward with somebody who may or may not have capacity. I'd like to thank you all for attending this program. If anyone has any questions, feel free to call or email me, and I'd be happy to address any other questions or concerns. And again, thank you.
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On demand
1h 01s

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