Professional Responsibility Rules When Dealing With Clients Who Have Diminished Capacity
“Steps a Lawyer Can Take in Identifying, Understanding, and Dealing With a Client With Diminishing Capacity,” that’s the subject of today’s ACTEC Trust and Estate Talk.
This is Travis Hayes, ACTEC Fellow from Naples, Florida. Professor Mary Radford previously recorded an ACTEC podcast (Professional Responsibility Rules When Dealing With Clients Who Have Diminished Capacity) discussing ethical responsibilities when representing clients with diminished capacity. Today, ACTEC Fellow Gerard Brew of Newark, New Jersey, will delve into how to identify diminishing capacity, share concerns related to capacity, and address the ethical quandaries associated with ongoing representation. Welcome, Gerard.
Identifying Diminishing Capacity
Thank you, Travis. In today’s program, I’m going to discuss the implementation of some of the ethical concepts that Professor Mary Radford mentioned in her recent podcast. Professor Radford and I have worked together for some period of time in developing materials that would focus a lawyer on how to deal with a situation where there’s a perception of diminishing capacity on the lawyer’s part.
We’ve noted that the subject of diminishing capacity has actually been a subject in our popular news, with recent stories ranging from the decline of Queen Elizabeth to Senator Feinstein to Senator Mitch McConnell and other public figures. The public debate has raged as to whether physical signs or observations could lead a person to be concerned as to their mental capacity.
In our setting, in the trusts and the estates world, Professor Radford noted statistics that indicate that all of us, at some point, will confront a client with diminishing capacity. It has become inevitable with the statistics of our aging population, the aging baby boomers, and the degree of cognitive impairment that is perceived in our society has greatly increased and is expected to continue to increase.
So let me talk about the first and foremost concept, which a lawyer, of course, needs to understand. Mary mentioned a number of ethics rules; I’ll mention the Model Rule of Professional Conduct 1.1. As part of a duty of competence, a lawyer needs to understand when a client might be encountering an issue with capacity.
I think it’s important to understand that cognitive decline can have many attributes in a person. Anything we touch: we see, we taste, we feel, and really all of our family relationships, our dynamics, our feelings, our sense of being and the like, are all affected by our cognitive status. Our cognitive status relates to the manner in which our brains control all of our human actions. Our brains drive every aspect not only of our judgment and intuition but also all of our physical attributes.
Understanding Cognitive Decline
Our brain is actually much different than what most people perceive it to be. A brain is a kind of soft mushy tissue. It’s kind of like a soft cheese, I think of fresh mozzarella. It’s easily sliced, but within it, it is comprised of billions of neurons that are linked together by cells called axons, which have little tentacles that interconnect with other neurons. And in order for our brains to work correctly, those pieces need to work together. Our brains are bathed in a fluid and a chemical base that allows for all of those interactions to occur without disruption and our discussion of cognitive impairment and diminishing capacity focuses on the fact that our brains are, unfortunately, easily damaged. Even though our brains are protected by our hard skulls and there are many mechanisms in effect to control and prevent injury to our brain, inevitably there are two types of cognitive decline.
The first would be called a generally diminishing decline in the areas of various types of dementia. Most people use the word Alzheimer’s, but that’s only a category of dementia. And the best way I can describe it to give you a sense is those types of cognitive declines involving disruption of the connection between neurons might be likened to rust. Just as a piece of steel in our cars or other things in the world rust, our brains begin to rust over time. The connections begin to weaken, they become disrupted.
Similarly, our brains can encounter sudden damage — a stroke, an aneurysm, a brain injury, any number of other medical events, including temporary medical events — can occur that undermine our ability to process cognitive skills. Our brains also are very hardwired to enable individuals to recall events in the category of our memory, but our memory is not just a matter of a file cabinet. In order for us to have a memory, we first have to perceive an event. So there’s a great deal of attention that we all must place on a person’s attention.
All of us nowadays are used to multitasking, having three screens open and the like, our brains are disrupted, and, often as we all know, however healthy we are, if somebody walks in the room and starts to discuss one thing and we’ve been paying attention to something else, we might never remember what we were doing beforehand. Well, in cognitive decline in the elderly and people facing serious medical impairments, all of those processes are accelerated, on top of which, people who are suffering from serious medical issues ranging from dehydration to routine infections — most common that we see in the areas of guardianship law and the like, might be a urinary tract infection. Those can cause a person to become as impaired as possible, but those are treatable. As is the case with many types of sudden brain injuries: strokes, aneurysms, brain injuries, and the like, treatment can be provided and there’s a chance of rehabilitation.
As opposed to in the degenerative situation. There are certainly medical advances every day, medications, and the like, but when you look at the progress, inevitably, a degenerative decline progresses and can ultimately lead to serious impairment and eventually to death.
Steps A Lawyer Can Take When Faced With A Client With Cognitive Decline
So, what can a lawyer do to address these considerations? Well, first and foremost, of course, we have to exercise our individual judgment. I hate to use the old phrase “we know it when we see it” but, most of us do. We, as lawyers, are not expected to be medical experts — I’ll get to that in a moment. But we’re expected to at least engage in some level of judgment. Any of us dealing with a 40 or 50-year-old business person would likely have no doubt that they aren’t cognitively impaired. But all you have to do is imagine a person has a few too many drinks in a bar and we all can see signs that a person might be temporarily impaired: slurred speech, staggering, and things of that type, including impaired inhibition. In a person with a cognitive decline of a degenerative or serious injury type, those impairments become more marked, more visible, and the like.
So, when we confront that, one of the first approaches we can consider taking is consulting with medical professionals. Maybe that’s already going on. Frequently, trust and estate lawyers are brought into a situation where there’s been a sudden event or a dramatic decline that’s now been picked up by a family member or a friend, and we are asked to intervene in a medical setting. That might provide us with access to information such as cognitive testing. But, just as important as it might be for lawyers to understand and perhaps observe signs of cognitive decline, we have to bear in mind that we are not the medical experts. Neuropsychologists, psychiatrists, neurologists, and other medical professionals, including specialized nursing staff, can provide assessments and conduct assessments that would give a signal.
Cognitive Decline: Ethical Quandaries and Legal Responsibility
Lawyers frequently are cited to concepts like a mini mental status exam. It’s a very short, thirty-question type inquiry that is provided as a routine screening mechanism in the medical setting. I would emphasize that in many cases is only the beginning of neurocognitive testing that would be implemented or I should say neuropsychological testing to truly determine capacity.
So, what can we as lawyers do when we’re confronting this? I mean, the first step is to gather information. The second step is to bear in mind who we represent. If our client is a person with a diminished capacity, we need to be mindful that our interaction with them might need to change from our ordinary interaction. The third thing to remember is that frequently when a family member or a child or somebody perceives a decline, or if we’re called in by that family member because mother or father has had a stroke or some sudden event, they’re frequently ahead of racing ahead. They see perhaps a situation that’s very different than might occur over a few days or a few weeks. So, we as lawyers have to take steps perhaps to slow down the process. Maybe that’s not true in every setting.
In some settings, it might be necessary and appropriate to act immediately. But even if we do act immediately in terms of implementing existing documents and the like, there’s still a need to revisit the situation and take a more guarded approach. I always emphasize in situations like this that we have steps that we as lawyers can take. Professor Radford mentioned Model Rule of Professional Conduct 1.14, which does provide guidance to lawyers generally, and the ACTEC Commentary on it provides a very sensible balancing test, which allows or permits, doesn’t require, but permits a lawyer to take certain protective actions. But as she mentioned, that rule hasn’t been universally adopted and the ACTEC Commentary hasn’t been adopted.
Impact on Legal Practice
So, I emphasize, in dealing with this from an estate planning perspective, a few things for the lawyer confronting this issue to bear in mind, particularly since they might be called a witness at some point. The first is to remember that none of us as lawyers are guarantors of the validity of the document. The strongest example I could give is an event going on that we’re not aware of, whether that’s undue influence or a grave medical situation that might not be apparent. In order to address those concerns, we as lawyers under the RPC 1.14 framework essentially become witnesses; taking steps, evaluating notes, asking open-ended questions, perhaps reviewing prior estate planning documents, but not word for word, but rather asking open-ended clients to the person who’s impaired so we can get a better sense as to whether the impairment is real or is something that is perceived, perhaps by others.
The last thing that I would bear in mind is that when we’re executing documents in that setting, it’s important to bear in mind that all of us in that setting are and could very well be critically important witnesses to the validity of the document. So, all of the steps of a slow and measured process: drafts being reviewed by the client, open-ended questions not only among the lawyer but in the presence of the attesting witnesses and the like, all of those would serve to create an effective record of the events that happened. That ACTEC Commentary in RPC 1.14 reminds us that our primary duty in that setting is to make a record and bear in mind that we need to be objective, take steps to the best we can to protect the client’s objectives while fully understanding that it is perhaps possible that a court or someone at some future date might determine that the person was in fact of impaired capacity.
Thank you, Gerard, for the follow-up to Professor Radford’s ACTEC podcast and for helping lawyers to better understand the issues involved in identifying, understanding, and dealing with a client with diminishing capacity.
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