Following the Steps for Medicaid Planning: Capacity of The Client

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August 17, 2018
Author: Sandra L. Sherlock-White
Organization: Law Offices of Sandra Sherlock-White, LLC

Capacity Of The Client

The question of client capacity is often central in an elder law practice. By its very nature, elder law is fraught with issues regarding capacity of the client. The client population is vulnerable to a variety of factors such as memory impairment, dementia and visual and hearing impairments which may effect capacity. However, prejudices regarding the elderly can effect the lawyers and other's perception of client capacity.

The Rules of Professional Conduct which have the force of law on attorneys were amended effective January 1, 2007 (except for revisions to Rule 1.15 effective September 1, 2006.) These Rules were designed primarily for adversarial situations. Participants in the system often respond by treating an individual with diminished capacity in a paternalistic manner rather than the adversarial one upon which the system is designed.

Rule 1.2 provides that a lawyer shall abide by a client's decision concerning the objectives of representation. This Rule explicitly mandates the principle of client autonomy and control, a principle which is fundamental to Elder Law and to Western Jurisprudence. Also, Rule 1.4 mandates that the attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. In adhering to Rule 1.4, the attorney educates and empowers the client and again advances client autonomy and control. Despite Elder Law practitioners' basic tenets of advocating for the elderly client, an Elder Law practitioner faces difficult and important ethical dilemmas when the client lacks the requisite capacity.

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The attorney must be confident of her client's ability to understand the nature and effects of their legal acts. The legal standard of capacity varies with the legal act to be consummated. Therefore, the attorney must consider what is the action the client seeks to take. Different acts require different levels of capacity. The attorney must also know what the law requires. Many legal standards of capacity for specific, discrete transactions are derived predominantly by the courts in the common law. The standard of capacity to make a will is that the testator understands the nature and extent of his property, his relationships to persons who are the natural objects of his bounty by law, and the fact and purpose of making a will, and that the testator has the ability to interrelate those factors to form a plan of property disposition. Testamentary capacity is not necessarily denied if the individual is subject to a conservatorship. Other transactions such as executing a deed or making a contract require that the client understands the nature, extent, and consequences of the transaction. A donor of a gift needs to understand the force and effect of the gift. Capacity to make health care decisions is defined by the 1993 Uniform Health-Care Decisions Act to mean “an individual’s ability to understand the significant benefits, risks, and alternatives to proposed health care, and to make and communicate a health care decision.” This definition is grounded in the principles of informed consent. Consent to treatment and the right to refuse treatment must be competent, voluntary, and informed. These capacity determinations are most often made by physicians without court intervention. While the issue of client capacity should be on the attorney's checklist within the initial attorney client interview, it is important for the attorney to recognize that a presumption of capacity exists in the law. The attorney should recognize that certain physical infirmities of the client may create a false impression of incapacity. Such impairments include deafness, blindness, and expressive and/or receptive aphasia as a result of stroke. The attorney needs to have the sensitivity and ability to see beyond mere physical disability.

In addition, though the attorney may receive or even request information from the client's family members regarding the client's mental capacity, the attorney must be cautious and consider the family member's own potential biases, prejudices, and/or self-motivation. Furthermore, though clients often request that a relative be present during attorney client conferences, it is important to meet with the client alone, so that the attorney has a clear view of the client unfettered by familial influences.

As the attorney begins to acquaint herself with the client, if the clients' capacity appears tenuous, a closer examination of client capacity by the attorney is warranted. Capacity, even as defined by expert geriatrician opinion is task specific. Tests for mental function can be misleading. These tests examine memory, cognitive skills, and language skills, and are traditionally used as diagnostic screens for dementia, not for capacity. Even Dementia does not necessarily preclude someone from making decisions. The critical issue in determining capacity is whether the client possesses the thought process that can evaluate the features of the task at hand and form a reasoned decision.

In interviewing the client, the attorney should use plain language free of legalese and speak slowly and clearly. The attorney should inquire of the client to state in his own words, if physically possible, their decision or objectives, reasoning and facts leading to the decision or objective. Repetition of question and answer may be useful to establish consistency. The client's responses need not be sophisticated and may be in simple terms. It should be understood that client capacity can wax and wane and, therefore, repeating the examination may be important. Capacity may be fluid rather than static. There is not necessarily a “cliff” of capacity. It should be noted that a client needs to possess competency at the time of the legal act or decision. Whether the client's capacity is diminished prior to or subsequent to the client's acts may be a moot point.

The Elder Law practitioner should be sensitized to the idea that the elderly have the same rights to exercise poor judgments, make bad decisions, or take risks. Our society at large tends to bear a paternalistic attitude towards the elderly. This paternalistic attitude is evident by those who would treat the elderly as if they were aged children who need the protection and guidance of others to do what is “good” with little or no regard for the elder’s desires. Ageism, which is prevalent in America, is a pernicious, unremitting bias against older adults. It is the Elder Law Attorney’s responsibility to promote client autonomy and to defeat the misperception that older people lack judgment or a sense of their own best interests, or are in need of others’ guidance. Neither age nor eccentricity alone should be a basis for finding an individual incapable. Many of the elderly, just like their younger counterparts, live in ways and make decisions based upon idiosyncratic choice. A great danger in capacity assessments is that eccentricities, aberrant character traits or risk taking decisions will be confused with incapacity. The Elder Law Practitioner needs to develop an advocate’s approach while maintaining an ability to recognize and deal with a client's incapacity.

If the client lacks the capacity to make reasoned decisions within the ambits of the legal representation, the attorney faces an ethical challenge. Rule 1.14(a) of the Rules of Professional Conduct states that when a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall as far as reasonably possible, maintain a normal client lawyer relationship with the client. This rule requires the attorney to continue to consider the incapable client’s wishes, directives, objectives, to the extent possible, communicate with the incapable client to the extent possible, and advocate for the client. Even a client who lacks the requisite capacity may have some level of functional understanding which may be sufficient to guide the attorney.

The commentary states that the fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with the same attention and respect afforded other clients. In cases where the client has a legal representative, the comment encourages the attorney to accord the client the status of client, particularly in maintaining communication. Guidance in the commentary to the lawyer in determining the extent of the client’s diminished capacity, includes consideration and balance of such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind, and ability to appreciate consequences of a decision, the substantive fairness of a decision, and the consistency of a decision with the known long-term commitments and values of the client. The focus should be on the client’s values. This does not apply a conventional standard of others, but rather the individual’s standards. The ability to articulate reasoning leading to the decision does not require that the decision be one that others agree with. As former Chief Justice Warren Burger wrote, “Nothing in this utterance suggests that Justice Brandeis (writing as to the Right to Privacy as the “Right to be let alone”) thought an individual possessed these rights only as to sensible beliefs, valid thoughts, reasonable emotions, or well founded sensations. I suggest he intended to include a great many foolish, unreasonable, and even absurd ideas, which do not conform, such as refusing medical treatment even at great risk.”

The commentary further provides that in appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician. No guidance is given as to what circumstances would make this appropriate. Given the fact that the client may not be able to consent to the examination and that the consultation may lead to an adverse outcome, the elder law attorney should be cautious in considering this alternative.

The commentary recognizes that the client may wish to have family members or other persons participate in discussions with the lawyer. The commentary states that when necessary to assist in the representation, the presence of such persons generally does not constitute a waiver of the attorney-client evidentiary privilege. The commentary adds that nevertheless, the lawyer must keep the client’s interest foremost and, except for protective action authorized under subsection (b), must look to the client, and not family members, to make decisions on the client’s behalf.

Where a legal representative has already been appointed for the client, the comment states that the lawyer should ordinarily look to the representative for decisions on behalf of the client. This highlights the need for the attorney to ensure that competent client or clients who have only begun to deteriorate be fully informed of the availability of incapacity planning tools such as durable powers of attorney, designation of health care agents, trusts, designation or conservators, and appointments of voluntary conservators. 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, Rule 1.14(b) of the Rules of Professional Conduct vests in the attorney the discretion to 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. This ethical consideration may pose the greatest ethical challenge to the Elder Law practitioner. No other Rule is so steeped in paternalism as Rule 1.14 is. The appointment of a guardian or involuntary conservator significantly deprives the client of his individual autonomy, liberty and rights. The imposition of a conservatorship intrudes on or removes an individual’s fundamental liberty interests protected by the U.S. Constitution. The Right to Privacy is lost. Control over one’s personal life is lost, potentially including the right to choose where to live, type of health care received, and the ability to manage one’s finances. In a 1987 report, the House Special Committee on Aging described the consequences of appointment, “The typical ward has fewer rights than the typical convicted felon-[he] can no longer receive money or pay [his] bills. By appointing a guardian, the court entrusts to someone else the power to choose where [he] will live, what medical treatment [he] will get and, in rare cases, when [he] will die. It is, in one short sentence, the most punitive civil penalty that can be levied against an American citizen…”

While Rule 1.14(c ) provides that information relating to the representation of a client with diminished capacity is protected by Rule 1.6 (Confidentiality), the Rule carves out an exception when the attorney is taking protective action pursuant to subsection (b) that the lawyer is impliedly 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. This exception, it would seem, may undermine and damage the trust relationship between the client and his attorney.

The revised commentary recognizes that disclosure of the client’s diminished capacity could adversely affect the client’s interests including proceedings for involuntary commitment. However, when taking protective action pursuant to subsection (b), the comments state that the lawyer is impliedly authorized to make the necessary disclosures as limited by subsection (c ), even when the client directs the lawyer to the contrary. The comments direct that at the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests, before discussing matters related to the client. The commentary concludes that the lawyer’s position in such cases is an unavoidably difficult one.

Both subsections (b) and (c ) may make the mandate of subsection (a) to maintain a normal client-lawyer relationship virtually impossible. A “Normal” client-attorney relationship is not one in which the attorney brings an adversarial action against her client which deprives her client of his Liberty interests.

This process, then, however necessary or seen to be in the best interests of the incapable client, is always, in some way adverse to the client. It is therefore advisable for the Elder Law practitioner to avoid seeking such an appointment for her client. The revised commentary suggests that protective action may include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decisionmaking tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. The commentary further adds that in taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client’s best interests, and the goals if intruding into the client’s decisionmaking autonomy to the least extent feasible, maximizing client capacities and respecting the client’s family and social connections. In the case where a presently incapable client has formerly thoroughly planned for incapacity has executed a designation of conservator, and has made crystal clear that in the event of his incapacity, he directs a conservator be appointed to serve his best interests, the attorney may more comfortably consider taking part in the process. Even in this case, the attorney must seek the opinion of a physician, preferably a geriatrician or psychiatrist, to evaluate the client's capacity.

Another instance in which the attorney may comfortably take part in the process to advocate for conservatorship is in the appointment of a voluntary conservator, provided the client clearly understands the risks, benefits, and alternatives of the appointment of a voluntary conservator and is able to reach a reasoned decision regarding the appointment. No finding of incapacity is made by the Probate Court in the appointment of a voluntary conservator.

The attorney is left to exercise her professional judgment, but the Elder Law practitioner must more heavily weigh an advocacy approach against a paternalistic best interest approach which may be better left to the system.

  1. Selection Of The Client

A typical scenario in an elder law practice is where a family member contacts the Elder Law practitioner regarding a capable or incapable elder. One of the first and obvious issues becomes who is the client?

Selection of the client may vary depending on the circumstances. If the elder is capable, then clearly the attorney may choose to represent the elder. However, if the initial contact was made by a relative of the elder, or if the elderly client requests that a relative or relatives meet with himself and the attorney, it is imperative that the attorney clearly communicates to all parties that she is exclusively representing the elderly client. This is still required even if the relative is paying the legal fees.

Revised Rule 1.7(a) of the Rules of Professional Conduct requires that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation of one client will be directly adverse to another client, or there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. The Rule further provides that notwithstanding the existence of a concurrent conflict of interest, a lawyer may represent a client if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against another client represented by the same lawyer in the same litigation or proceeding, and each affected client gives informed consent, confirmed in writing. The revised commentary states that resolution of a conflict of interest problem requires the lawyer to clearly identify the client or clients, determine whether a conflict of interest exists, decide whether the representation may be undertaken despite the existence of a conflict, and if so, consult with the clients affected and obtain their informed consent, confirmed in writing. In order to gain informed consent each affected client must be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of the client. The information must include the implications of the common representation, including possible effects on loyalty, confidentiality, and the attorney-client privilege and the advantages and risks involved. Therefore, it may be possible to represent the elder client and his relative if all parties have been counseled fully by the attorney regarding the implications, advantages, and risks of the common representation. Further, the attorney must reasonably believe the representation will not be adversely affected. In some cases it may be impossible to make the disclosure necessary to obtain consent.

The revised comments further provide that even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. This would apply where the prospect of a conservatorship of an elderly client exists. The comments state that the critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.

The revised comments state that the effectiveness of waivers of conflicts that might arise in the future is determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future conflicts that might arise and the actual and reasonably foreseeable adverse consequences of those conflicts, the greater the likelihood that the client will have the requisite understanding according to the commentary.

A situation where such common representation may be permissible is one where the elder client and relative client are aligned in interest. Such a scenario may include spouses contemplating planning for incapacity where one spouse is suffering a disabling illness, yet both spouses are capable, and the ill spouse wishes to protect as much of their estate as possible for the healthy spouse. Greater potential for conflict may exist where there is a second marriage and there may or may not be children.

Another situation where the attorney might consider representing the elder client and a relative or third party may be where the elder client has formerly completed exhaustive incapacity planning with the attorney in which various contingencies are addressed. If the client subsequently becomes incapacitated, the attorney may consider common representation in carrying out the elder client's plan if the parties are aligned in that interest and have been fully counseled as to the potential for conflict and have consented. However, if the elder client plan treats natural heirs disparately, the potential for conflict may be greater. This scenario underscores the goal of having presently capable clients consider multiple future contingencies and documenting the clients’ conclusions. Where the family member contacts the attorney and the elder is incapable, the issues are more difficult. In order to represent the incapable elder, the attorney would need to examine the extent of the elder's incapacity and determine whether the elder had sufficient capacity to contract the attorney's services.

The attorney may choose to represent the family member as the fiduciary of the incapable client. The attorney may wish to have some indicia of the client's intentions as to how the fiduciary should act given the present circumstances. The attorney should clearly communicate to the fiduciary client whether she is representing him individually or as fiduciary of the elder. The fiduciary client may contract for legal services on behalf of the elder client or be represented individually.

If the attorney determines that she will be representing the family member and not the elder, the attorney may need to consider ensuring adequate independent legal representation for the incapable elder depending on the legal action to be taken. Within proceedings for involuntary conservatorship, an attorney will be appointed for the incapable respondent.

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