Practical Ethics in Elder Law (HYPOTHETICAL #1)

CLIENT SEEMS INCONSISTENT AND IRRATIONAL

Dave: Client seemed rational and in charge of faculties when I did prior estate planning with her some years ago. Client has come back to the office to update her estate plan and seems irrational. Her wishes as currently expressed are inconsistent with her prior expressions and I cannot fathom the reason. What should I do to protect her and myself?


Paul: When dealing with the elderly, an attorney’s role as an advisor becomes even more important. In representing a client, a lawyer must exercise independent professional judgment and render candid advice. We know that a lawyer is to maintain a normal client-lawyer relationship as far as reasonably possible even if the client has diminished capacity. The lawyer can take “reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client” when the lawyer reasonably believes the client (1) has diminished capacity; (2) is at risk of substantial physical, financial or other harm unless action is taken; and (3) cannot adequately act in the client's own interest.

But how does the attorney determine if the client has diminished capacity, is at risk of harm, or cannot adequately act in her own interest? How do we determine which individuals or entities have the ability to take actions to protect the client? How do we determine which individuals or entities have the client’s best interests in mind?

Of course when speaking with individuals or entities about the client’s situation, there is the issue of client-lawyer confidentiality. When taking protective action, the lawyer is impliedly authorized under Rule 4-1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

Dave: This is a tough call. Particularly since the attorney does not have assurance that the client has revealed his or her true reasons for action. The attorney has some obligation to try to get to know the client and to ascertain client's testamentary capacity [understanding of the subject matter involved with the transaction, the nature of the transaction, and the parties involved], and the attorney can certainly advise the client on possible consequences and alternatives. But the attorney is not the ultimate arbiter of what makes sense. Moreover the planning attorney's ability to determine the client's mental competence is hampered by the lack of exacting standards, the difficulty and expense of obtaining a mental health assessment, and by the need to protect confidentiality.


Fundamental to the attorney-client relationship is that the client has a right to be wrong. In some cases it may be appropriate for the attorney to simply tell the client that the client's decision is such that the attorney is unwilling to participate in its implementation. In other situations it may be appropriate to document the attorney's reservations. A warning letter to the client about the proposed action may be either overly patronizing, too simplistic to outline all of the possible risks, too technical and detailed for a layperson [especially one of questionable judgment] to understand, and a considerable burden on the attorney to compose. Is the purpose of the warning to protect the client or protect the lawyer? The resemblance to defensive medicine [too many tests] is striking!

Paul: The Missouri Supreme Court addresses which factors should be considered in determining the extent of a client’s capacity in Comment [6] under Rule 4-1.14.

I believe the attorney should use his or her knowledge of the client’s known long-term commitments and values to determine whether something has changed considerably in the client’s life to justify this sudden change, or if the client has been under considerable duress or lacks capacity.

It may be necessary for the attorney to take some sort of protective action on behalf of the client. When taking appropriate measures to protect the client, the elder law attorney should be: (a) guided by the wishes and values of the client and the client’s best interests; (b) seek to minimize intrusion into the client’s decision-making autonomy and maximize the client’s capacity; (c) respect the client’s family and social connections; and (d) consider a range of actions other than court proceedings and adult protective services.

Using what the attorney knows about the client’s values and wishes, the attorney must advocate for the client’s best interests. This responsibility increases with the extent to which the client cannot determine his or her own best interests. The attorney must aim to protect the client’s rights, remedies, and economic interests and [to the extent the attorney knows] the attorney should take the course of action which the client would choose if the client were capable of deciding.

This, of course, creates a potential conflict between the client’s current wishes and the client’s best interests. Ultimately, the attorney should balance the client’s need for decision-making assistance with the client’s other interests such as autonomy, safety, independence, financial well-being, health care, and personal liberty. All actions taken should be the least restrictive alternative, the least invasive by the attorney, and should reflect the wishes and values of the client and the client’s best interests.

Dave: If prospective heirs or others later dispute what is done now, a hindsight evaluation of whether or not the attorney correctly diagnosed the client's capacity, evaluated the client's best interests and current wishes, called in family members, experts, or otherwise intruded upon the client's confidences, autonomy, privacy, and freedom of action could put an incredible burden upon the attorney! It seems to me that going against the client's currently articulated desires carries a high degree of risk. Assuming there was no conflict of interest or other ethical breach, the attorney ought to get the benefit of the doubt for a decision made in good faith.