Spotting Diminished Capacity

The prevalence of dementia in the older population requires that the elder law attorney be aware of the risk of incapacity and ready to deal with diminished capacity. Dementia is estimated to double every five years in the elderly. While this disorder affects only 1% of persons 60 years old, it affects approximately 30% to 45% of persons 85 years old. 

The elder law attorney should refer to the Model Rules of Professional Conduct (MRPC) and the Assessment of Older Adults with Diminished Capacity: Handbook for Lawyers, published by the American Bar Association. Under Model Rule 1.14, the attorney should try to maintain a normal client-lawyer relationship and has the discretion to take protective action in the face of diminished capacity. Finally, the attorney has discretion to reveal confidential information to the extent necessary to protect the client’s interests. The failure to assess a client’s capacity is a ground for legal malpractice.

The attorney will first determine whether the prospective client has sufficient legal capacity to enter into a contract for the attorney’s services, then whether the client has legal capacity to carry out the specific legal transaction(s) under consideration. The Comment to Model Rule 1.14 notes that “a client with diminished capacity often has the ability to understand, deliberate upon and reach conclusions about matters affecting the client’s own well-being.”

There are several levels of capacity. For a testamentary capacity, the client should know the natural objects of his or her bounty, understand the nature and extent of his or her property, and interrelate these elements sufficiently to make a disposition of property according to a rational plan. Capacity is required only at the time the will was executed. For a donative capacity, the client shall understand the nature, purpose and effect of the gift, nature and extent of the property given, and have a knowledge of the natural objects of the donor’s bounty.

Because capacity is presumed, the attorney should be looking for “red flags” in the cognitive, emotional, or behavioral anomalies during the course of the interview that may reverse the presumption of capacity. 
  • Short-term memory loss or communication problems. For instance, the client may have difficulties finding a particular word or naming common items
  • Comprehension problems
  • Lack of mental flexibility, calculation problems, or
  •  disorientation. 
Possible emotional signs of incapacity:
  • Significant emotional distress 
  • Sign of an extremely wide range of emotions during an interview
  • Highly inconsistent with what the client discusses. 

Possible behavioral signs of incapacity could be:
  • delusions
  • hallucinations
  • poor grooming or hygiene. 
These cognitive factors should be mitigated with diminished capacity. A client may appear confused because of stress, grief, or depression. Signs of disorientation and confusion could be due to a host of medical conditions and medication factors that are reversible. Normal mental status may vary during the day depending on the energy of the senior. For instance, 
clinicians have learned to test older clients in mid-morning when the client is most alert, since fatigue could cause lower performance. In addition, losses in hearing and vision, that are normal with aging, diminish functioning but not mental capacity. Finally, the individual’s education, life and job-related experience, and sometimes socio-economic background, may impair the mental ability of the individual.

What the attorney should look for is the client’s ability to articulate reasoning leading to decisions, the consistency of these decisions, the client’s ability to appreciate the consequences of a decision, and the substantive fairness of the decision.

The attorney should use caution as to videotaping the client or using cognitive screening instruments. Unless the attorney videotapes all clients, the videotaping may itself be used to raise the doubts of capacity. The most popular screening instrument is the 30-item Mini-Mental Status Examination (MMSE). It provides quick but blunt assessment of overall cognitive mental status. Because lawyers generally do not have the education and training to administer and interpret cognitive screening tests, it is not appropriate for an attorney to use this test. The attorney may misinterpret the test or over-rely on it. Finally, the screening exams pose a risk of producing both false positives and false negatives in conclusions.

An elder law attorney should take steps to maximize the capacity of an older client as follows:
  • Take the time to “break the ice” and maybe speak about areas of common interest
  • Interview the client alone to ensure confidentiality and to build trust
  • Address the confidentiality of the relationship
  • If the client is more comfortable with a support person, this person may be included for a portion of the interview
  • An older client should be encouraged to participate as much as possible, therefore the attorney should talk directly to the client rather than to the support person, and the client’s feelings should be respected and valued
  • Sometimes it will be necessary to spend more time with an older client or even to have multiple sessions.
To enhance the communication with an individual suffering from hearing loss, the attorney may:
  • minimize background noise
  • look at the client when speaking, speak slowly and distinctly
  • use a lower pitch without over-articulating or shouting, and 
  • sit close to the client. 
Some client will appreciate a written summary and follow-up materials.

To summarize, when the attorney notices mitigating factors of incapacity, the attorney needs to assess them and to perform a legal analysis regarding the capacity required for the transaction considered when there are:
  1.  Mild problems of capacity to more than mild or substantial concerns of capacity, the attorney may proceed to the transaction or consider a medical evaluation. 
  2. Severe problems of capacity, the attorney should not proceed with the transaction. 
Final responsibility rests on the shoulders of the attorney to decide whether representation can proceed as requested, regardless of the clinical assessment.