Presented by Richard Mayberry to National Association of Healthcare Advocacy Consultants
Vision and Voice –
Creating Healthcare Advocacy Skills for the 21st Century- Seminar first presented in 2010
Matrix for Determination if Lawyer Can Represent Mentally Impaired
I.
Who Is Your Client?
A.
Mom and Dad
Usually,
in an elder law practice, the older
adult is your client even if you, as the attorney, have been initially
contacted by another individual such as an adult child. A disclosure of whom you are representing
should be made at the earliest possible time or, at the latest, during the
initial client conference.
An
attorney-client engagement letter should set forth the scope of the services to
be performed by the firm and any matters that may be excluded from the legal
services. Most importantly, the
responsibilities of the attorney and the client should be clearly established
in writing, identifying who is represented by the attorney. Confidentiality and conflict-of-interest
issues should be clearly explained.
B.
Conflicts with Adult Children
When several
generations are involved in the planning, a Disclosure of Conflict of Interest and Release of Information need
to be signed by the client(s). In
addition, the attorney should lay out the content of the relationship with
family members that are not primarily represented. The attorney should address the issue about
what kind of information that the attorney will accept to share. The attorney should establish his/her
position in case the attorney subsequently acquires knowledge that the plan of
one client may adversely affect the interest of another client.
The Secret to
Avoiding Conflict Between Spouses’ Interests
The
elder law attorney may have to represent spouses when there are children from a
prior marriage or the spouses’ interests are conflicting. In certain situations, a divorce may be part
of Medicaid planning. In this instance,
the attorney will not be able to represent both spouses; usually other
approaches are not viable.
When
representing a couple, the attorney should assess the duty of each spouse
toward the other and the ability to carry out their instructions. Pre- and Post-marital agreements, contract to
make wills, and rights under pension plans should be reviewed. In addition, duties toward third parties
should be reviewed such as child support, parental support, obligations or rights
to or from prior spouse and others by agreements, prior divorce decrees, or
arising under compensation or retirement plans.
The
attorney will need to explain the potential conflict of interest and how it can
be resolved. If a joint representation
fails, the attorney may reserve the right to continue to represent one client
in the matter or related matters. The
basis of longstanding relationship with one of the clients may impact the dual
representation. The attorney needs to
clearly stipulate whether it is a joint or separate representation or whether
only one individual is represented. In
the case of joint representation, the attorney needs to address the possibility
of a future prohibition on the lawyer’s representation of either one of the spouses. Finally, the attorney needs to inform the
clients of the impact of gaining knowledge regarding either spouse, as well as
the attorney’s duty to inform each spouse on certain matters.
II.
Competency
A.
The
Competency of the Client - Who Calls the Shots?
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.”
B.
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. The attorney may be aware of the red flag by
reports of family members. The possible
cognitive signs could be short-term memory loss or communication problems. For instance, the client may have
difficulties finding a particular word or naming common items. Other cognitive signs could be comprehension
problems, lack of mental flexibility, calculation problems, or
disorientation. The possible emotional
signs of incapacity could be a significant emotional distress or sign of an
extremely wide range of emotions during an interview or highly inconsistent
with what the client discusses. Finally,
possible behavioral signs of incapacity could be delusions, hallucinations or
poor grooming or hygiene. For instance,
older adults suffering from dementia may wear multiple layers of clothing.
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.
C.
Maximize Capacity, When Possible
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
should 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. 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 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. However, when there are
severe problems of capacity, the attorney should not proceed with the
transaction. Please note that the final
responsibility rests on the shoulders of the attorney to decide whether
representation can proceed as requested, regardless of the clinical assessment.
D.
Protection of Client
The
Virginia State Bar, in its Virginia Rules
of Professional Conduct, provides in, Rule 1.14, when an attorney finds not
only that the elder client is incompetent but “reasonably believes that client 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 attorney may take reasonably necessary
protective action.” In order to take
action, the attorney may have to disclose information regarding the
client. Rule 1.14 provides that the
attorney is impliedly authorized to disclose relevant information about the
client but only to the extent reasonably necessary to protect the client’s
interest.
E.
On-going Interaction with Client During
Representation
An
attorney should not start a representation without a signed engagement letter
that carefully lays out the scope of the representation. Rule 1.3 of the Virginia Rules of Professional Conduct provides that a lawyer shall
act with reasonable diligence and promptness in representing a client. Rule 1.4
stipulates that a lawyer shall keep a client reasonably informed about the
status of a matter and promptly comply with reasonable requests for
information. A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation. A lawyer shall inform the client of facts pertinent to the
matter and of communications from another party that may significantly affect
settlement or resolution of the matter.