With South Florida being a mecca for the citizens better referred to as “baby boomers,” senior citizens compromise a vast majority of the clientele attorneys represent in one capacity or another. In the popular practice area of Estate Planning and the newly emerging practice area of Elder Law, being able to analyze a client’s capacity, or lack thereof, is of great legal importance. As an attorney, you should begin every client intake/interview by assessing the potential client’s behavior, mannerisms and cognition for any red flags indicating a potential lack of capacity to enter into a binding attorney/client contract. Ensuring that your client fully understands the purpose and parameters of their legal representation should be at the center of your initial interview. In fact, it is an ethical violation under Model Rule 1.141 for an attorney to knowingly enter into a legal services contract with a client that lacks capacity to do so.

That brings me to crux of the article; What is CAPACITY and how can you tell if one lacks said capacity? Capacity in this instance refers to mental capacity. More specifically, the mental capacity to reason and deliberate. It is worth noting that any person under the age of 18 has NO capacity to contract; no assessment of their mental capacity is needed. This discussion centers on persons over 18 years of age. Some signs that may indicate a client may have a capacity issue are as follows:

1)Disheveled appearance

2)Emotional distress

3)Needing things to be repeated several times

4)Trouble reciting their name, phone number or address

5)Trouble reading or writing

6)Trouble understanding the parameters of the representation agreement/contract

7)Trouble understanding the relevant laws at issue

8)Any advanced state of confusion about the date or recent events

9)Any uncertainty about the fruits of their bounty (real and personal property)

A great resource to keep handy in your law office is Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers. It is endorsed by the American Bar Association Commission on Law and Aging and the American Psychological Association.

While there are several tell-tale signs that can signal a person may be lacking requisite mental capacity, when they become apparent is just as important as how. For instance, a client needs

1American Bar Association: Model Rules of Professional Conduct, Rule 1.14

2Rutgers Law Rev. 1996 Winter; 48(2):345-71.

to have all of their faculties about them and possess the requisite mental capacity to enter into a legally binding employment contract at the inception of the attorney client relationship. Just as in any contract, the attorney/client employment contract or retainer agreement can be voided by the party who is presumed to have entered into the contract while lacking the mental capacity to agree to the terms of the contract, or by their guardian. Therefore, it is of great importance for every attorney to start the client intake interview with their senses on high alert….for any of the above mentioned signs of a lack of capacity.

While it is important that the client have capacity at the inception of legal documents such as wills, trusts, contracts, health care surrogates, living wills etc., it is likewise important to set your client up with safeguards by way of documents such as durable powers of attorney, revocable trusts and designations of a person to serve as a guardian should the need arise.

Now what can you do if you see that your current client or potential client may be having trouble communicating with and understanding the gravity of the situation they are in from a legal standpoint? There are a few small tips that you can implement to try and help your client’s comprehension, without having to go so far as to declare them incapacitated. If they seem to be having trouble understanding you, ask if they regularly have trouble hearing, or if there is another language that they prefer. Should they complain about difficulty comprehending the legal jargon of a document, ask them if they would prefer a larger font type or ask them if there are any legal terms that they would like explained or defined. Sometimes just slowing down the conversation and not overwhelming them will give the client who seems to be lacking capacity a bit more clarity for this brief interaction. Also consider giving them a few days to read over material and seek the opinion or assistance of a close family member or friend.

What if you notice that during the course of representation, your client’s capacity begins to diminish? How do you address the issue 1) with your client without insulting them and 2) with another professional for advice on the matter? ATTORNEY/CLIENT CONFIDENTIALITY should be ringing in your ears. The lawyer must be mindful to adhere to ABA Model Rule 1.63 and not disclose any confidential client information in attempting to protect the best interest of the client. If seeking advice from a legal or medical professional for instance, a lawyer may reveal enough information regarding the client in order to secure legal advice about the lawyer’s compliance with the rules of professional conduct4.

Keeping in mind attorney client confidentiality, the attorney must walk a fine line when dealing with a clients perceived lack of capacity when bringing it up to interested persons close to the client or to the client himself. An attorney can also ask a court to determine the capacity of

3American Bar Association: Model Rules of Professional Conduct, Rule 1.6

4American Bar Association: Model Rules of Professional Conduct, Rule 1.6 (b)(4)

their client should there come a time in the relationship that they may seem to not have all of their faculties about them. This request from the court is called a petition to determine capacity. In it, you detail the observations you have made that give rise to the suspicion that there may be a lack of capacity; such as your client not knowing the date, the name of the president, their birthday or the purpose of your legal relationship.

Make sure to always act in the best interest of your client first, and your professional reputation and that of your firm will be safeguarded.

Please contact us at Bryant Law directly for more information.