Presented by Richard Mayberry to national audience of lawyers by teleconference and webinar, CLE, first presented 2011. A. Competency vs. Diminished Capacity Diminished capacity is not incompetency. A client with diminished capacity may be competent to retain counsel and sign an estate or elder law plan. An initial determination is whether a prospective client has sufficient legal capacity to enter into a contract for legal 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 of the American Bar Association 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.” Information relating to the representation of a client with diminished capacity is provided by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is implicitly 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. Not all of Rule 1.14 recommended by the American Bar Association has been adopted by the Virginia State Bar. The factors addressed in this rule derive from recommendations from a 1993 National Conference on Ethical Issues in Representing Older Clients. | Peter Margulies wrote an article where he described six factors; the first three are “functional” and the latter three are “substantive”:
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