There will be continually increasing incidences of legal capacity questions in the coming years due to the demographics of our aging population and thus the rise of dementia accompanying the aging process. According to the “Assessment of Older Adults With Diminished Capacity: A Handbook for Lawyers” (written by the American Bar Association Commission on Law and Aging and the American Psychological Association) the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1% of persons 60 years old to a condition afflicting approximately 30% – 45% of persons 85 years old.
Rule 1.14 of the ABA Model Rules of Professional Guidance provides some guidance to lawyers when dealing with a Client with Diminished Capacity: (i) the goal of maintaining a normal client-lawyer relationship even when a client’s capacity to make adequately considered decisions in connection with a representation is diminished, (ii) the discretion to take protective action when the lawyer believes that the client has diminished capacity, and is at risk of substantial physical, financial or other harm unless action is taken, (iii) the discretion to reveal confidential information when taking protective action only to the extent necessary to protect the client’s interests. Comment 6 of Rule 1.14 states that in determining the extent of a client’s diminished capacity the lawyer should consider and balance such factors as: 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.
The “Assessment of Older Adults With Diminished Capacity: a Handbook for Lawyers” recommends a systematic role for lawyers in capacity screening at three levels. The first level involves a preliminary screening or initial assessment component the goal of which is to identify capacity “red flags.” If there are no, very minimal or mild capacity concerns, representation can proceed. The second level, if needed, involves the use of a professional clinical consultation or formal evaluation or assessment. The third level requires making the legal judgment that the level of capacity is either sufficient or insufficient to proceed with representation.
There are many legal standards of diminished capacity depending on the specific legal transaction involved and the state legal standards. Understanding the causal component of the diminished capacity, cognitive function, functional behavior and interactive components or particulars of a client’s life and situation are all important considerations in dealing with diminished capacity.