Attorney Responsibility and Client Incapacity

Journal of Contemporary Health Law & Policy (1985-2015), Dec 2013

By Raymond C. O'Brien, Published on 12/31/13

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Attorney Responsibility and Client Incapacity

Journal of Contemporary Health Law & Policy (1985 Attorney Responsibility and Client Incapacity Raymond C. O'Brien 0 1 Recommended Citation 0 Raymond C. O'Brien, Attorney Responsibility and Client Incapacity , 30 J. Contemp. Health L. & Pol'y 59 (2014). Available at: 1 Th e Catholic University of America, Columbus School of Law Follow this and additional works at; http; //scholarship; law; edu/jchlp - TABLE OF CONTENTS INTRODUCTION I. DEMOGRAPHICS A. CASE IN POINT B. PARALLEL DATA II. ATTORNEY RESPONSIBILITY III. LAST WILL AND TESTAMENT A. TESTAMENTARY CAPACITY B. UNDUE INFLUENCE IV. CONSERVATORS, GUARDIANS AND DURABLE POWERS OF ATTORNEY A. STATUTORY DISTINCTIONS B. EVIDENTIARY BASIS FOR APPOINTMENT C. LIMITED GUARDIANSHIPS D. APPOINTMENT OF COUNSEL CONCLUSION INTRODUCTION In and of itself, the aging of the American population poses no ethical or legal issue for the American attorney. Indeed, at least for attorneys working with wealth management, estate devolution, and the ever-changing state and federal tax codes, the accumulation of years is often accompanied by an accumulation of wealth and attorney employment options. Wealth creates the indispensable milieu for a productive attorney-client relationship. But, the accumulation of years can bring less attractive options. As Ralph Waldo Emerson concluded in his essay Circles: “Nature abhors the old, and old age seems the only disease; all others run into this one.”1 Physical and mental   ∗ Professor of Law, The Catholic University of America, Columbus School of Law; Visiting Professor of Law, The Georgetown University Law Center. This Article is submitted to celebrate the thirtieth anniversary of The Journal of Contemporary Health Law and Policy. The author is grateful for the research assistance of Joel Deuth. 1. RALPH WALDO EMERSON, Circles in THE COLLECTED WORKS OF RALPH WALDO EMERSON VOL. II ESSAYS: FIRST SERIES 177, 188 (Alfred R. Ferguson, et al., Harv. Univ. Press 1979). disabilities accompany human years, often bringing with them a mental capacity that is insufficient to safeguard of person and property, prompting the creation of mechanisms to effectively transfer decision-making authority to other persons or institutions. Increasingly, attorneys are asked to provide legal services to clients under circumstances that suggest that the client’s mental capacity is diminished or absent. Examples would include, most commonly, the preparation and execution of a last will and testament. The formalities of due execution are easily and objectively satisfied by the seasoned attorney. However, particularly in regard to an aging population, the attorney must also confront the more subjective intention of the client: Whether the client has the necessary capacity for execution; whether the client is being unduly influenced by another; or whether the client is executing the last will and testament while under a delusion. Each of these subjective tests involving client capacity has a corresponding legal pedigree delineating what must be done to establish validity. Each requires the attorney to be sensitive to personality issues involving the client and often the client’s family and beneficiaries. In addition to last wills and testaments, larger numbers of clients are requesting attorneys to prepare and execute durable powers of attorney, which will transfer decision-making authority to another person in the event that the principal becomes incapacitated in the future. Such an arrangement is meant to avoid the appointment of a guardian or a conservator, which would avoid court costs and presumptively, management by strangers to the principal. All three arrangements—durable powers, guardianships and conservatorships—“spring” into action because of the incapacity of the principal. How does a court, usually upon petition of a family member, prove incapacity of the principal? Does the client possess limited capacity? And how does an attorney determine if the principal possessed capacity to execute the durable power? If the durable power lacks effectiveness because the principal was incapacitated at the time of execution then, upon petition, a court may appoint a guardian or a conservator. But, as with the durable power, what proof is necessary to establish the incapacity of the principal so that the appointment is valid? An attorney’s relationship with his or her client is governed by rules of professional responsibility. Each state licenses its attorneys to practice and each state has its own rules of professional conduct. The American Bar Association publishes Model Rules of Professional Responsibility and these model rules illustrate the issues that arise in the context of an attorney and a client’s capacity. Overall, the rules govern when an attorney may withdraw from providing services to a client, when an attorney for the client may consult with persons or entities able to take necessary action, issues of confidentiality, and making a good faith effo (...truncated)


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Raymond C. O'Brien. Attorney Responsibility and Client Incapacity, Journal of Contemporary Health Law & Policy (1985-2015), 2013, pp. 59-95, Volume 30, Issue 1,