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
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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)