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.
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, 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, 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?
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 his or her demeanor and physical and cognitive abilities. If the person is homebound 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 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 to a nursing home and has been profoundly injured 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, 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, including legal services? 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 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.
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? 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 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 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, who is usually appointed only for the purpose of 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. 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 guardian until the court can appoint one.
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, 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. 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, visitation, 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 and paternity 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; Vice Chair David Michaels of Etobicoke, Ontario, Canada; Secretary and Treasurer William Friedlander of Ithaca, New York; and Immediate Past Chair Joseph Bluth of Mankato, Minnesota.
Annual membership dues are $45. To join or for more information, contact ATLA Sections at (800) 424-2725, ext. 290, or visit the Family Law Section home page at www.atla.org/sections/ familylaw.
(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, Scope & Terminology [section](1), Model R. Prof. Conduct (ABA 2002), www. abanet.org/cpr/mrpc/preamble.html (last accessed Nov. 1, 2006).