By Julie Jason, JD, LLM
A resource for lawyers, this article originally appeared in the April 2022 issue of Trusts & Estates.
With the rising number[i] of individuals with dementia or Alzheimer’s, lawyers need to be alert to the possibility of cognitive impairment, especially with the elderly. In that context, should an attorney refrain from an engagement if the attorney suspects impairment? What about an existing client who acts differently than usual. For example, a client who’s exhibited strong math skills over the years becomes confused when it’s time to add a tip to a dinner tab. A perfectionist client whose files and calendar are always organized can’t locate documents. A longtime client is suddenly unable to find your office after years of office visits.
In either case, prudence dictates considering capacity before legal services are rendered. Potential litigation can be pre-empted, as well as a possible claim against the lawyer for malpractice.[ii]
Cognitive Impairment Suspected
Numerous studies discuss the differences between normal or healthy aging and cognitive impairment, whether mild cognitive impairment (MCI) or advanced Alzheimer’s disease (AD) or another form of dementia.
“The challenge to clinicians is to appreciate where the boundary between normal and abnormal is for a particular patient,” according to David Knopman and Ronald Petersen.[iii] “Forgetting is intrinsically human and increases with aging.”[iv]
Whether mild or severe, cognitive impairment involves: “(1) learning and memory, (2) language, (3) visuospatial, (4) executive, and (5) psychomotor. .. Mild cognitive impairment (MCI), calls for only one of these areas to be impaired and for substantial impairment, more than one. . .” [v]
MCI isn’t universal among the elderly. However, of those diagnosed with MCI, the vast majority (80%) are later diagnosed with dementia (within six years).[vi] Contrast that to typical (non-MCI) elderly, who are rarely (1-2%) diagnosed with dementia.[vii]
Lawyers need to take special care when drafting wills, trusts, lifetime transfer documents, powers of attorney and every document, directive or decision that can potentially lead to a family conflict or challenge on competency questions. They need to address risk factors for undue influence, depending on the lawyer’s assessment of the client’s state of mind, potentially leading to a clinical opinion on susceptibility.[viii]
As pointed out in a joint publication of the American Bar Association (ABA) and the American Psychological Association (APA), “In cases of ongoing or anticipated family or other conflict, the foresighted attorney may seek to preempt a future litigation (e.g., a will contest) by having the client undergo a capacity assessment prior to the execution of the legal transaction (e.g., the will).”[ix]
The need for a lawyer to be alert to and potentially assess a client’s ability to make judgments is undeniable. Where can lawyers turn for guidance?
Like it or not, lawyers make judgments about the competence of a client to engage them – perhaps subconsciously. That isn’t the equivalent of a cognitive assessment, which is the role of a medical doctor, a specialist in cognitive impairment. Beyond the ability of a client to engage the lawyer is their ability to make decisions (for example, freely and competently directing a course of action, such as identifying heirs who will inherit assets).
When a lawyer doubts the client’s ability, the lawyer isn’t without resources and guidance. The ABA’s Model Rules of Professional Conduct (MRPC)[x] serves as a guide. MRPC Rule 1.14 "Client with Diminished Capacity”[xi] addresses these issues head on; all states and the District of Columbia have adopted the rule, with Texas being the last to adopt (in 2021; numbered Rule 1.16).
Section (a) deals with maintaining a normal-client relationship, even if the client’s capacity is diminished:
When a client's capacity to make adequately considered decisions in connection with a 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.
Under section (a), the client-lawyer relationship continues. Under section (b), the lawyer may need to take action, as capacity is diminished and there is risk of harm to the client.
When the lawyer reasonably believes that 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, 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.
Section (c) addresses the lawyer’s need to reveal information about the client to protect the client’s interests.
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. (emphasis added)
Rule 1.6[xii] deals with Confidentiality of Information. Specifically:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary.
On the note of confidentiality, Charles P. Sabatino, former Director of the ABA Commission on Law and Aging, elaborates that “The ABA’s Standing Committee on Ethics and Professional Responsibility in Formal Opinion 96-404, relies on the impliedly authorized language of MRPC Rule 1.6(a) to conclude that limited disclosure to the extent necessary to act in the client’s best interest is impliedly authorized by the fact of representation.”[xiii]
While the rules are helpful in general, a lawyer faced with a decision on how to handle a client who may have diminished capacity could use some further guidance. The essential resource is a 2021 joint publication of the ABA and the APA: Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers (Handbook).[xiv] The Handbook takes the MRPC rules from theory into practice, offering an essential resource worth studying.
The Handbook includes information such as when and how to engage a physician (clinician) who can make a cognitive evaluation, how to make a referral to a clinician who would make a diagnosis, what to make of the diagnosis and how to think of legal responsibility when faced with the issue of appropriate engagement with the client their family.[xv]
The Handbook also includes essential tools such as a worksheet a lawyer would use to judge capacity before making a referral,) a model referral letter for the lawyer to use when referring a client to a clinician for a formal assessment and an example of a formal assessment report.
If Assessment is Desirable
Here are some suggested steps to take if an assessment is needed:
Informal review. The lawyer could have a private consultation with a clinician (with or without the client’s knowledge) to discuss and clarify specific capacity issues before proceeding further with representation. As long as the client isn’t identified, disclosure of a private consultation isn’t deemed necessary according to MRPC Rule 1.14(c). The lawyer would pay for the clinician’s verbal report.[xvi]
As previously discussed, MRPC Rule 1.14(b) provides explicit recognition of such external consultations, indicating it’s proper for the lawyer to seek guidance from an appropriate diagnostician in cases in which clients demonstrate diminished capacity.
Formal assessment. The lawyer refers the case to a clinician to make a formal capacity evaluation of the client, which requires the client’s consent. MRPC 1.14(b) provides “an attorney may feel compelled by capacity concerns . . . to seek an independent formal capacity evaluation by a clinician. Such a decision . . . requires a client’s consent to be evaluated.”[xvii]
How does a lawyer make a referral to a clinician? Best practices point to a written referral letter detailing the lawyer’s observations and the review requested.
Referral Letter Checklist
The Handbook contains a checklist for the lawyer to follow.[xviii]
- Client background: name, age, gender, residence, ethnicity and primary language if not English.
- Reason client contacted lawyer; date of contact; and whether new or old client.
- Purpose of referral: assessment of capacity to do what? Nature of the legal task to be performed, broken down as much as possible into its elemental components.
- Relevant legal standard for capacity to perform the task in question.
- Medical and functional information known: medical history, treating physicians, current known disabilities; any mental health factors involved; lawyer’s observations of client functioning, need for accommodations.
- Living situation; family make-up and contacts; social network.
- Environmental/social factors that the lawyer believes may affect capacity.
- Client's values and preference to the extent known; client's perception of problem.
- Whether a phone consultation [with the clinician][xix] is wanted prior to the written report.
If the client is identified, as would be the case with a formal evaluation, the lawyer needs client consent.
The Handbook recommends that the lawyer use language that is honest, direct and compassionate when getting the client’s consent. Here’s an example the Handbook provides:
Mrs. Jones, I am concerned about how you are doing. I am a little worried about your memory. To be sure that everything is okay for us to make this change to your will, and to make sure no one would contest it later, I would like you to meet with a clinician to do some formal assessment of your thinking. Hopefully, the testing will show us that everything is okay. If not, hopefully the testing will show us how to help you to meet your goals. The testing could come out either way, but I think it is a good idea to be sure. Is it okay if I set up an appointment for a specialist to talk with you and conduct the tests?[xx]
The clinician making the assessment will take a history, talk with family members and others who observed the behavior and reach a diagnosis. The result of the clinician’s assessment will reveal whether there’s a diagnosis of cognitive impairment and importantly, the stage of severity, that is, how much impact is there on daily life -- is it impaired?
If the Diagnosis Is Dementia?
If the client is diagnosed with mild to severe impairment, the lawyer needs not only to address engagement, but also may be called on to assist the client in putting a plan in place in anticipation of future incapacity, potentially to the point of needing assistance with some or all daily living skills. Hopefully, any impairment is discovered early enough for the client to be involved in making decisions about their own future.[xxi]
From my point of view as an investment counsel who’s worked with high-net-worth families through three decades, a diagnosis of dementia will cause confusion and fear within the family, sometimes tied to financial security. This is an unsettling time for all – families and advisers alike. Most important for all will be setting a tone of prudence and compassion, with lawyers, family and advisors coming together to plan a safe and secure future for the client who may need the kind of help that’s hard to ask for.
[i] There [were] over 55 million people worldwide living with dementia in 2020. This number will almost double every 20 years, reaching 78 million in 2030 and 139 million in 2050, according to Alzheimer’s Disease International, the international federation of Alzheimer and dementia associations around the world. www.alzint.org/about/dementia-facts-figures/dementia-statistics/#:~:text=Numbers%20of%20people%20with%20dementia&text=There%20are%20over%2055%20million,will%20be%20in%20developing%20countries.
[ii] “[L]egal malpractice for failure to address capacity questions in appropriate cases is a growing risk…as the frequency of dementia rises. . . . “If there are any signs of diminished capacity, the lawyer is far better off consistently documenting the process of determining that the client does or does not have capacity to engage in the transaction.” See “Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers,” 2nd Edition (2021), at p. 3, www.americanbar.org/products/inv/book/411701219/.
[iii] David Knopman and Ronald Petersen, “Mild Cognitive Impairment and Mild Dementia: a Clinical Perspective” Mayo Clinic Proceedings (2014), at p. 1454, https://doi.org/10.1016/j.mayocp.2014.06.019
[vi] Jungha Hwang and Sunmin Lee, “The effect of virtual reality program on the cognitive function and balance of the people with mild cognitive impairment, Journal of Physical Therapy Science (2017), at pp. 1283-1286, www.ncbi.nlm.nih.gov/pmc/articles/PMC5574359/.
[viii] Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers” 2nd Edition (2021) (Handbook), Chapter VIII (Referrals for Consultation or Formal Assessment), at p. 47. www.americanbar.org/products/inv/book/411701219/.
[x] Model Rules of Professional Conduct (ABA 2021), https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/.
[xi] Ibid., Section 1.14
[xii] Model Rules of Professional Conduct Section 1.6 (ABA 2015).
[xiii] Charles P. Sabatino, “Representing a Client with Diminished Capacity: How Do You Know It And What Do You Do About It?” Journal of the American Academy of Matrimonial Lawyers, at pp. 481-505 (2016) https://cdn.ymaws.com/aaml.org/resource/collection/F737C104-4B52-409B-8B2A-7B7BDD14A2AD/representing_a_client_with_diminished-16-2.pdf.
[xiv] Handbook, supra note viii.
[xv] Handbook, supra note viii, Chapter VIII (Referrals for Consultation or Formal Assessment).
[xvi] Ibid., at pp. 50-51.
[xvii] Ibid., at p. 47.
[xviii] Ibid., at p. 52.
[xix] Insert added
[xx] Ibid., at p. 51.
[xxi] See Kerry Peck and Rick L. Law, Don’t Let Dementia Steal Everything: Avoid Mistakes, Save Money, and Take Control, Chapter 9 “Guardianship and Conservatorship: Out of Control and Fighting Back! The Legal Tool to Regain Control and Stop the Chaos” (American Bar Association, 2018). See also “Planning for the Future After a Dementia Diagnosis,” www.alzheimers.gov/life-with-dementia/planning-for-future#financial-planning. See also Jason Karlawish, The Problem of Alzheimer’s: How Science, Culture, and Politics Turned a Rare Disease into a Crisis and What We Can Do About It (St. Martin's Press, 2021).