Elder law attorneys deal with questions of client capacity every day, but even practitioners with a lot of experience representing elders face difficult decisions that they may not feel comfortable making without additional training. Florida elder law attorney Ed Boyer offered practitioners tips for handling a myriad of ethical dilemmas in a session titled "Representing Clients with Diminished Capacity: Ethical, Legal, and Practical Issues" at the National Academy of Elder Law Attorneys fall program in Jersey City, N.J., November 5-8, 2009.
Boyer stressed to his audience that despite their apprehension about assessing a client's capacity, all elder law attorneys make judgments about client capacity as soon as the client walks in the door. Several decisions occur in the initial client meeting that directly implicate capacity questions. First, the attorney has to make sure that the client has the capacity to hire him, and second, the attorney must assess whether the client can accomplish the underlying legal task, such as executing an estate plan. These decisions often force the attorney to apply different legal standards of capacity. For example, the client hiring the attorney must possess the capacity to enter into a contract, whereas a client executing an estate planning document must have testamentary capacity.
Often, attorneys addressing capacity make their decisions based on feel and experience. Boyer encouraged the session participants to have a sound conceptual idea of how capacity works, coupled with a consistent procedure for evaluating client competence. Since most attorneys are not going to send questionable clients out for a full clinical evaluation, he said it helps to have standards in place to properly evaluate client capacity and to utilize those standards every time a client with questionable competency walks through the door.
Boyer acknowledged that experts disagree about what exactly constitutes the difference between capacity and incapacity. He explained that relying on a mere medical definition may not work because the medical diagnosis needs to relate to the applicable legal standard of capacity. Boyer highlighted several case studies from his own practice where clients who may have lacked "clinical" capacity could still execute legal documents, and he focused on ways to avoid legal malpractice claims that could follow an incorrect decision, pointing out that in many states attorneys owe a duty to beneficiaries of estate planning documents, not just to the client who executes them.
Although his presentation was more of a broad overview, Boyer's accompanying materials provide a wealth of detail -- including discussions of case law and assessment tools -- that will aid elder law practitioners in evaluating and handling issues of competency before they arise in the conference room.
To order the materials for these and other sessions, as well as streaming video of sessions, visit NAELA's Web site, www.naela.org, and click on the "Online Education Library" tab under "Events."
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