After the practitioner has determined that the client has capacity for legal representation, the practitioner will have to assess whether the client has the capacity to execute a legal document.  Capacity levels vary depending on what kind of legal contract is involved. 

            Testamentary Capacity.  The client should have the ability to appreciate the following elements in relation to each other: (1) understanding the nature of the act of making a Will; (2) having general understanding of the nature and extent of his/her property; (3) having general recognition of those persons who are the natural objects of his/her bounty; and (4) understanding a distribution scheme.

            Contractual Capacity.  The client should have the ability to understand the nature and effect of the particular agreement and the business being transacted.

            Donative Capacity.  The client should have an intelligent perception and understanding of the dispositions made of property and the persons and objects one desires shall be the recipients of one’s bounty.

 Presumption of Mental Capacity

            From a legal perspective, incapacity is officially determined by the Court, but otherwise there is a presumption of mental capacity.  However, the practitioner will always have to assess whether the client has the capacity to enter into a contract of representation and whether the client has the capacity to execute a legal document.

            Even if the capacity is presumed, the practitioner must determine whether or not a prospective client has sufficient legal capacity to enter into a contract for the lawyer’s services.  Then, the lawyer will have to evaluate the client’s legal capacity to carry out the specific legal transactions desired as part of the representation.  Finally, Rule 1.14 of the Rules of Professional Conduct of the Supreme Court of Virginia has the following instructions for the practitioner when dealing with individuals with diminished capacity:

·       When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with 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.

   While mental capacity is presumed, the presumption can be overcome by “red flags” in cognitive, emotional, or behavioral anomalies during the interview or from information provided by family members.  

Cognitive signs are:

• 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 
• Disorientation  

Emotional signs of incapacity are:

• Significant emotional distress
• An extremely wide range of emotions during an interview
• High inconsistency in the person's oral speaking abilities

Behavioral signs of incapacity are:

• Delusions
• Hallucinations
• Poor grooming or hygiene.  For instance, older adults suffering from dementia may wear multiple layers of clothing.  

Difficulty in the Determination

            Competency tests are not always clear cut.  Cognitive factors can be mitigated in the case of diminished capacity.  A client may appear confused because of stress, grief, or depression.  Signs of disorientation and confusion may be caused by medical conditions or medications – both of which are subject to change.

            Aging also plays a significant part. 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. 

            The key is a person's ability to articulate reasoning leading to decisions, the consistency of these decisions, the ability to appreciate the consequences of decisions, and the substantive fairness of the decisions.  When the competency is not clear, a letter from a physician is secured to better evaluate the ability to undertake estate and elder law planning with counsel.

            The failure to assess a client’s capacity has been asserted as grounds for legal malpractice by would-be beneficiaries of a client’s largess.  For example, a disinherited child may allege in a will contest that a lawyer did not exercise proper care in that he or she failed to determine the testator’s capacity to execute a will.  Traditionally, the courts have been reluctant to fine lawyers, in part due to the lack of “privity of contract” between the lawyer and the disinherited third party. However, the principle of privity has eroded over the years, and standards of practice continue to evolve as the prevalence of incapacity rises and as a greater awareness of the need to address capacity issues has emerged.  Legal malpractice for failure to address capacity questions in appropriate cases is no longer a remote possibility.

            The American Bar Association has published a book, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, to provide conceptual background and to offer systematic steps in making assessments of capacity.  The handbook recommends three levels of screening for lawyers.

            First Level:  Preliminary Screening.  This is a “red flags” checklist to assess what level of concern the lawyer shall have:  (1) there is no or very minimal evidence of diminished capacity and representation can proceed; (2) there are some mild capacity concerns, but they are not substantial and representation can proceed; (3) capacity concerns are substantial or at least more than just mild, and professional consultation or formal assessment may be requested before any representation can proceed; and (4) capacity is lacking and representation cannot proceed. 

            Second Level:  Consultation or Referral.  For mild or substantial capacity concerns, the practitioner should require a professional consultation or request a referral for formal assessment.

            Third Level:  Making the Legal Judgment.  The final responsibility rests on the shoulders of the attorney to decide whether representation can proceed.  In addition, the level of legal capacity varies depending on the legal transaction sought.  Testamentary capacity requirements are very minimal.  The client must have the capacity to know the natural objects of his or her bounty, to understand the nature and extent of his or her property, and to inter-relate these elements sufficiently to make a disposition of property accounting to a rational plan.  The capacity is required at the time the will is executed. 

            During the interview, the lawyer should be aware of specific cognitive, emotional, or behavioral anomalies that serve as red flags or could be reported by family members.  The lawyer should document the signs observed and also make notations about the nature and severity of these signs.  The handbook recommends the use of a worksheet.  The lawyer should look for the following signs of diminished capacity: (1) cognitive signs, (2) emotional signs, and (3) behavioral signs.

            Cognitive Functioning Signs.  The client may have short-term memory problems.  For instance, she/he may remember events of the past few days but forget what has been discussed within the past 15-30 minutes, or frequently repeat the same questions.  The client may have communication problems shown by difficulties in finding words, trouble staying on topic, or bizarre statements or reasoning.  The client may show disorientation such as trouble navigating in the office or be confused about day/time/year/season.  However, an inability to write checks may be merely a physical deficit, the failure to remember payment obligations, or misunderstanding the bill. 

            Signs of Emotional Functioning.  Significant emotional distress exists when the client stays in persistent emotional distress and has emotions beyond what is expected given the circumstances.  For example, the client may be tearful, distressed, excited, pressured, or manic.  The client may suffer from emotional swings by moving quickly between laughter and tears, and having feelings inconsistent with the topic. 

            Signs of Behavioral Functioning.  Examples of delusional behavior would be the client’s feeling that others are spying or organized against him/her, being fearful, or feeling unsafe.  Hallucinatory behavior would be when the client appears to hear or talk to things not there, see things not there, or misperceive things.  Another behavior functioning sign would be poor grooming or hygiene.  The client may be unusually unclean or inappropriately dressed.  For instance, the client may not brush his/her hair, shave, or shower regularly, or have other grooming issues.  A common behavior for individuals suffering from dementia is to wear multiple pairs of pants or several shirts.  Attention to the appearance, clothing, and smell of a client gives clues to possible mental status changes.