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The ethics of representing the incapacitated: to best help a client who is weakened by age or otherwise debilitated, know the rules of professional conduct and how to apply them.

A lawyer who is consulted by someone who may be incapacitated in·ca·pac·i·tate  
tr.v. in·ca·pac·i·tat·ed, in·ca·pac·i·tat·ing, in·ca·pac·i·tates
1. To deprive of strength or ability; disable.

2. To make legally ineligible; disqualify.
 should be prepared to encounter ethical issues not common to typical personal injury cases. Who will be the client--the incapacitated person or a relative or guardian? What if a family member is more interested in his or her inheritance than the welfare of the incapacitated person?

While ethical questions like these can make this area of practice especially challenging, the cases can also be uniquely rewarding. Lawyers who handle cases involving incapacitated people are not only easing the distress of family members who face difficult decisions in caring for relatives, but they are also furthering society's interest in protecting the physical, mental, and financial well-being of some of its most vulnerable citizens.

The initial contact usually comes from a member of the incapacitated person's family--a spouse, a child, a sibling sibling /sib·ling/ (sib´ling) any of two or more offspring of the same parents; a brother or sister.

sib·ling
n.
, or another relative. But sometimes a nonrelative--a neighbor, a clergy member, or a social worker--will contact you first. It doesn't matter who makes the first call, but if it is not a family member, you should find out why the family is not calling. You don't need to speak with the family, but you should try to or at least investigate the family.

If the initial caller is a relative, then it is important to have the family present at the first meeting to explain the process of pursuing the case and to choose a guardian/representative. The family member selected will be your contact person thereafter.

If several family members attend the first meeting, be sure to clarify who your primary contact will be. Who will provide the information necessary to initiate and advance the case? Who will be responsible for paying court costs court costs n. fees for expenses that the courts pass on to attorneys, who then pass them on to their clients or, in some kinds of cases, to the losing party. , your fee, and other case-related expenses? Determine who your client is. Are you being asked to represent the incapacitated person or someone else who will serve as the person's guardian or conservator conservator n. a guardian and protector appointed by a judge to protect and manage the financial affairs and/or the person's daily life due to physical or mental limitations or old age. ?

Before selecting a guardian or representative, you need to determine whether the person is capable of making legal decisions. If possible, arrange to have the potentially incapacitated person come to your office for the initial client meeting so you can evaluate firsthand first·hand  
adj.
Received from the original source: firsthand information.



first
 his or her demeanor The outward physical behavior and appearance of a person.

Demeanor is not merely what someone says but the manner in which it is said. Factors that contribute to an individual's demeanor include tone of voice, facial expressions, gestures, and carriage.
 and physical and cognitive abilities. If the person is homebound home·bound
adj.
Restricted or confined to home, as of an invalid.
 or living in a nursing home or other facility, plan to visit him or her in that setting.

Be aware that these cases often involve conflict-of-interest issues, especially if the person who contacted you is related to the incapacitated person. Rule 1.7 of the ABA Aba (ä`bä), city (1991 est. pop. 264,000), SE Nigeria. It is an important regional market, a road and rail hub, and a manufacturing center for cement, textiles, pharmaceuticals, processed palm oil, shoes, plastics, soap, and beer.  Model Rules of Professional Conduct provides that a lawyer generally cannot agree to represent two parties if doing so would create a concurrent conflict of interest. There are some exceptions to the rule, but even if the exceptions apply, both parties must give informed consent to the dual representation, confirmed in writing.

Consider a scenario where a woman comes to you claiming that her mother is confined con·fine  
v. con·fined, con·fin·ing, con·fines

v.tr.
1. To keep within bounds; restrict: Please confine your remarks to the issues at hand. See Synonyms at limit.
 to a nursing home and has been profoundly injured in·jure  
tr.v. in·jured, in·jur·ing, in·jures
1. To cause physical harm to; hurt.

2. To cause damage to; impair.

3.
 as a result of the facility's neglect. It appears from the facts that the mother is severely brain damaged, cannot speak or move, and probably will never be released from institutional care as a result of the neglect. She has no other children and no living spouse.

Your preliminary analysis reveals that there is strong evidence of neglect and that a claim against the nursing home probably will yield a substantial award or settlement. However, in speaking to the daughter, it becomes clear that she is not interested in using any recovery to provide additional care for her mother. Instead, she is solely interested in conserving her inheritance.

As counsel, you will have to choose whether to represent the daughter or mother. Model Rule 1.7(a) prohibits you from representing both parties because there is a concurrent conflict of interest. It is also clear that the mother will not be able to give informed consent, confirmed in writing. (1)

Now suppose that the totally incapacitated mother is a former client. In that case, Model Rule 1.9 controls. It provides that unless you obtain the mother's informed consent, you cannot represent the daughter in a related matter if her interests are materially adverse to the mother's. Since the mother here is totally incapacitated, no informed consent can be obtained.

As in this example, a client who is incapable of making knowing and thoughtful decisions probably will not be able to give informed consent. Without this, the duty to your original and now incapacitated client takes precedence The order in which an expression is processed. Mathematical precedence is normally:

1. unary + and - signs
2. exponentiation
3. multiplication and division
4.
, and you should not represent another person with conflicting interests.

When addressing a client's consent, you must also consider Rule 1.14 regarding guardianship if your client has a disability. (This rule is discussed further in the competence section below.)

Assess the client's interest

If you decide to represent the incapacitated person rather than family members, it is important to discern, if possible, his or her interests and desires. The ABA rules require that you interview the client, and I recommend doing so in person, not over the phone. Arrange to meet in a setting most comfortable for the client, if possible.

During this meeting, you should assess the goals of your representation. Is the client preparing to enter into contracts for goods and services In economics, economic output is divided into physical goods and intangible services. Consumption of goods and services is assumed to produce utility (unless the "good" is a "bad"). It is often used when referring to a Goods and Services Tax. , including legal services legal services n. the work performed by a lawyer for a client. ? Does he or she have the ability to understand a contractual agreement?

Is the client preparing a will, trust, or living will? Does he or she have testamentary capacity--that is, does the client comprehend the content of the estate and understand which family members or cherished individuals will receive the bequests? Is this visit to determine the client's instructions for health care and advance care directives? Does the client appear to be of sound mind to make these decisions?

It is important to know and follow the client's wishes, not those of others. Perhaps you have a client who is a resident of a nursing home and chooses to remain there. Family members, however, do not want the client to be vulnerable to wrongful wrongful Forensic medicine An adjective with considerable medico-legal currency, used in several contexts. See Negligence.

Wrongful

Wrongful death An event that is usually regarded as negligent. See Negligence.
 acts and neglect that they believe occur at the facility.

If the resident wants to remain in the nursing home and does not want to "be a problem," then you are required by Model Rule 1.2 to consult with the client in a "normalized environment" and abide by his or her decision. For example, arrange to speak with the client in a private room in the nursing home, without staff or family members present.

However, if your client is waning in cognitive and decision-making functions and you do not believe that remaining in the nursing home would be in his or her best interests, you must go further to determine your client's capability to make this decision.

Determine competence

To evaluate your client's ability to make decisions, listen carefully to his or her answers to your questions about the case. Does he or she seem confused or disoriented dis·o·ri·ent  
tr.v. dis·o·ri·ent·ed, dis·o·ri·ent·ing, dis·o·ri·ents
To cause (a person, for example) to experience disorientation.

Adj. 1.
? Consider taking a medical history to determine whether there are any organic problems or existing diagnoses that could affect his or her capacity.

If the client appears to have some ability limitations but is not totally incapacitated, try to make the attorney-client relationship as normal as possible. Take steps to mitigate the client's limitations. For example, if he or she has problems seeing or hearing, visual or hearing aids Hearing Aids Definition

A hearing aid is a device that can amplify sound waves in order to help a deaf or hard-of-hearing person hear sounds more clearly.
 may help your communication. If the client is not competent without taking medication, schedule your meetings after the medication has been administered.

If you determine that because of a physical or mental incapacity The absence of legal ability, competence, or qualifications.

An individual incapacitated by infancy, for example, does not have the legal ability to enter into certain types of agreements, such as marriage or contracts.
 the client can no longer handle his or her own affairs, manage finances, make informed medical decisions, or maintain his or her physical well-being, then Rule 1.14 (b) allows you to seek a guardian for the incapacitated person.

In most jurisdictions, a guardian is responsible for asserting an incapacitated person's rights and protecting his or her best interests. Guardians must be appointed by a court, and the duties of guardians are defined by the nature and extent of their appointment.

A guardian can serve in one of several capacities, including emergency versus permanent, limited versus full, and as guardian of the person rather than as guardian of the estate. Some courts use conservators to protect the incapacitated person, but a conservator usually protects only the person's financial interests. There are other types of guardians, such as a guardian ad litem A guardian appointed by the court to represent the interests of Infants, the unborn, or incompetent persons in legal actions.

Guardians are adults who are legally responsible for protecting the well-being and interests of their ward, who is usually a minor.
, who is usually appointed only for the purpose of litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.

When a person begins a civil lawsuit, the person enters into a process called litigation.
 and decisions related to the case.

In some states or localities, public guardianship programs exist to serve low-income incapacitated people. In jurisdictions without a public guardianship program, a government agency or official may serve as the guardian of last resort for the indigent indigent 1) n. a person so poor and needy that he/she cannot provide the necessities of life (food, clothing, decent shelter) for himself/herself. 2) n. one without sufficient income to afford a lawyer for defense in a criminal case. . People who can pay for services may use private guardians or guardianship agencies.

Usually the court will approve and appoint any qualified person, corporate fiduciary, private guardianship, support agency, or local or county agency to serve as guardian.

The court is not likely to appoint someone who has a conflict of interest with the incapacitated person. For example, in some jurisdictions, the court will not appoint family members because they may have direct financial interests in the amount of money spent on the incapacitated person. (2)

Sometimes an attorney must act as the guardian-in-fact. When it is apparent that the incapacitated person does not have the ability to make legally binding decisions, then the attorney often serves as a de facto [Latin, In fact.] In fact, in deed, actually.

This phrase is used to characterize an officer, a government, a past action, or a state of affairs that must be accepted for all practical purposes, but is illegal or illegitimate.
 guardian until the court can appoint one.

Establish confidentiality

When representing incapacitated clients whose family members are involved as guardians, representatives, or concerned individuals and there is no concurrent representation, you must consider not only conflicts of interest, but also issues of confidentiality and the goals of the representation. (3) The family member who is the guardian or representative for the incapacitated person may contact you to find out the status of the case as it progresses. But you may disclose information only to your client and the family member with the legal authority to make decisions for him or her.

Rule 1.6 requires confidentiality except in the following situations: the client waives or agrees to disclosure, you believe disclosure is necessary to reveal information to prevent death or bodily harm The medical idea of (grievous) bodily harm is more specific than legal ideas of assault or violence in general, and distinct from property damage.

It refers to lasting harm done to the body, human or otherwise, although in its legal sense it is exclusively defined as lasting
, you believe disclosure is needed to prevent the client from committing a crime or fraud that uses your services, or the court orders disclosure.

If your client has not specifically agreed to release information to a family member, then you must not release the information no matter how well-intentioned the family member's concerns or questions are.

You may have a client who becomes incapacitated while you are representing him or her in a case. If you notice a rapid cognitive descent, with whom can you discuss this observation? To whom must it be revealed, and when?

Rule 1.6 (a) applies to the release of information to a physician on behalf of your client. The lawyer may disclose information that is necessary to further the representation and is impliedly authorized au·thor·ize  
tr.v. au·thor·ized, au·thor·iz·ing, au·thor·iz·es
1. To grant authority or power to.

2. To give permission for; sanction:
. Rules 1.6 and 3.3 apply to disclosing the decline of a client's physical or mental ability to a third party--such as opposing counsel or the court.

Rule 3.3 requires lawyers to act honestly in dealing with the court. You cannot offer any evidence that you know is false. For example, if you know that your client suffers from newly diagnosed and aggressive cancer, you must divulge that information if there is a claim of future damages and questions about the client's health have been asked during discovery or at trial.

These are just a few of the many ethical issues you must consider when representing the elderly or incapacitated client. Nevertheless, if you remember that "a lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice," (4) you will be able to safely tread the ethical minefield.

Family Law Section is close-knit community sharing support, information

Family law practitioners represent clients who are dealing with highly emotional issues, including those related to divorce, child custody The care, control, and maintenance of a child, which a court may award to one of the parents following a Divorce or separation proceeding.

Under most circumstances, state laws provide that biological parents make all decisions that are involved in rearing their
, visitation VISITATION. The act of examining into the affairs of a corporation.
     2. The power of visitation is applicable only to ecclesiastical and eleemosynary corporations. 1 Bl. Com. 480; 2 Kid on Corp. 174.
, and adoption. The Family Law Section offers ATLA's family lawyers a respite from their stressful practices by providing a small, intimate community where members can share their thoughts on how to best serve their clients.

This year, the section continues to "focus on issues of prime importance to lawyers who are helping parents and kids in divorcing families," said section chair Elliott Alman of Gaithersburg, Maryland.

Many activities are geared toward helping members learn how to best handle the very private and sometimes painful interpersonal issues that arise in divorce and custody matters. Some of those issues include family relocation, grandparents' rights, and DNA DNA: see nucleic acid.
DNA
 or deoxyribonucleic acid

One of two types of nucleic acid (the other is RNA); a complex organic compound found in all living cells and many viruses. It is the chemical substance of genes.
 and paternity testing paternity testing

see parentage testing.
. The section is also concentrating on addressing family matters for military personnel.

The section's state delegates keep members involved and informed. The delegates brief section members on current state-specific legal developments, which are compiled and published in the Family Law Section newsletter. Section members also keep in touch daily online through the section's list server.

The section plans an education program each year for ATLA's Annual Convention that touches on hot topics in family law. Speakers at the most recent program presented pointers on how to handle high-profile or celebrity family law cases.

In addition to Alman, the section's officers are Chair-Elect and Newsletter Editor Timothy Butler of Darien, Connecticut Darien is a town in Fairfield County, Connecticut, United States. It is one of the most affluent communities in the United States.

Two Metro North railroad stations serve Darien: Noroton Heights and Darien'''.
; Vice Chair David Michaels David Michaels is a pseudonym for the author of the novel series Splinter Cell. Created by American author Tom Clancy, Splinter Cell began as a series of video games for various console systems. Michaels is currently working on another Splinter Cell novel.  of Etobicoke, Ontario Etobicoke (pronounced IPA: /əˈtoʊbɨkoʊ/ listen  , Canada; Secretary and Treasurer William Friedlander of Ithaca, New York
This article is about the City of Ithaca and the region. For the legally distinct town which itself is a part of the Ithaca metropolitan area, see Ithaca (town), New York.

For other places or objects named Ithaca, see Ithaca (disambiguation).
; and Immediate Past Chair Joseph Bluth of Mankato, Minnesota “Mankato” redirects here. For other uses, see Mankato (disambiguation).
Mankato is a city in Blue Earth County¹, Minnesota with a population of 32,427 as of the 2000 census².
.

Annual membership dues are $45. To join or for more information, contact ATLA ATLA Association of Trial Lawyers of America
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender
 Sections at (800) 424-2725, ext. 290, or visit the Family Law Section home page at www.atla.org/sections/ familylaw.

Notes

(1.) See also Model R. Prof. Conduct 1.8, 1.9 (ABA 2002), www.abanet.org/cpr/mrpc/rule_l _8.html, www.abanet.org/cpr/mrpc/rule_l_9. html (last accessed Nov. 1, 2006).

(2.) Wilhelm v. Wilhelm, 657A.2d 34 (Pa. Super. 1995).

(3.) See Comment, Model R. Prof. Conduct 1.2 (11) (ABA 2004) (special obligations when dealing with a beneficiary).

(4.) Preamble A clause at the beginning of a constitution or statute explaining the reasons for its enactment and the objectives it seeks to attain.

Generally a preamble is a declaration by the legislature of the reasons for the passage of the statute, and it aids in the interpretation of
, Scope & Terminology [section](1), Model R. Prof. Conduct (ABA 2002), www. abanet.org/cpr/mrpc/preamble.html (last accessed Nov. 1, 2006).
COPYRIGHT 2006 American Association for Justice
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2006, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Wilson, Rhonda Hill
Publication:Trial
Date:Dec 1, 2006
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