The Challenge of Representing Mentally Impaired Clients

By Helen W. Gunnarsson

You think your client's judgment might be impaired – must you do what she asks? Can and should you talk to the family? Is guardianship the answer? Here's a review of the governing rules, along with advice from experienced practitioners.

Jean is a long-time client who has become a friend over the years. While having a conversation with her one day you sense that something's not right: she can't remember something you've discussed many times with her.

Or there's Bob, who seems outwardly fine, speaks coherently, and wants to change an estate plan for reasons that seem perfectly logical to you, but you make a house call on him and find a house in such disarray as to cause you to question the sanity of anyone who'd live under such circumstances.

May you suggest to Jean and Bob that they obtain a medical examination to determine their mental fitness? May you apprise their family members of your concerns? May you seek the appointment of a guardian? Do you have any obligation to take any action other than what either client requests of you? Is it ethically permissible for you to do so? If so, what may – or should – you do?

The governing rules

The questions are difficult, and the answers will depend on the facts of each situation, as any experienced practitioner will tell you. Fortunately, there is ethical guidance on the subject in the Illinois Supreme Court Rules. What's more, there's a serious proposal for revision that would provide even more assistance for the practitioner who's wondering what his or her options are and how to proceed in an ethically permissible way.

Illinois Rule of Professional Conduct 1.14, entitled "Client Under A Disability," provides as follows:

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship.

(b) A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

This language is identical to ABA Model Rule 1.14 prior to its 2002 amendment. The amendment came out of the ABA's Ethics 2000 Commission's work of reviewing and recommending amendment of the Model Rules of Professional Conduct.

The ABA has adopted the following revised version of Rule 1.14, now entitled "Client with Diminished Capacity:"

a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

As 1.14(c) suggests, it's essential to read RPC 1.14 together with RPC 1.6 in considering the issue of how the attorney may or should act when presented with a client with possibly diminished capacity. Illinois's RPC 1.6, entitled "Confidentiality of Information," now provides in relevant part as follows:

(a) Except when required under Rule 1.6(b) or permitted under Rule 1.6(c), a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure.

(b) A lawyer shall reveal information about a client to the extent it appears necessary to prevent the client from committing an act that would result in death or serious bodily harm.

(c) A lawyer may use or reveal:

(1) confidences or secrets when permitted under these Rules or required by law or court order.…

The ABA's Model Rule 1.6 on confidentiality of client information reads in relevant part as follows, after the adoption of the Ethics 2000 Commission's recommendations:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm….

(4) to secure legal advice about the lawyer's compliance with these Rules….

(6) to comply with other law or a court order.

At ISBA's annual meeting in June 2004, the ISBA Assembly followed the lead of the Joint Illinois State Bar Association/Chicago Bar Association Committee on Ethics 2000 and voted to recommend that the Illinois Supreme Court adopt most of the changes made by the ABA to its Model Rules of Professional Conduct, including many of the changes the ABA made to RPC 1.14 and 1.6 (view the recommendations at <www.isba.org/eth2000.html>). Until and unless the court does so, of course, the ABA Model Rules are only advisory and not controlling.

As additional guidance for the practitioner, the Model Rules include official commentaries elaborating upon the Rules, which the Ethics 2000 Commission also revised. The ABA also publishes the ABA Annotated Model Rules of Professional Conduct (the most recent edition was published in 2003), which contains even more extensive explanations of the Model Rules.

Read together, the amended rules and their commentaries and annotations suggest three significant themes. First, mental capacity is a continuum, so that a client with impaired mental capacity may nevertheless be capable of making significant decisions for himself or herself. Second, guardianship is discouraged in virtually all situations except where it is the only viable alternative. Third, a lawyer may reveal information about a client that might otherwise be confidential under certain limited circumstances in order to protect the client.

Mental capacity as a continuum

The ABA's Annotation to Rule 1.14 states that it was amended "to express more accurately the continuum of a client's capacity, and to add guidance for lawyers regarding potential measures that can be taken for a client with diminished capacity, short of seeking a guardian." The Commentary to Model Rule 1.14, n1, states that "a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being."

Model Rule 1.14 speaks of the lawyer's reasonable belief that the client has diminished capacity. The official commentary at note 6 provides some guidance as to how the lawyer should make that determination:

In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

The definition of mental capacity, too, may vary, so that, as suburban Cook County practitioner Cary Lind notes, a person may be legally competent for some purposes but not for others. The standard for making decisions regarding one's own medical care, codified in the Health Care Surrogate Act, 755 ILCS 40/10, is very low. The standards for conveying property and executing wills are different, and not identical. And Lind, whose practice is heavily concentrated in probate litigation, has noted that the terms "competence" and "mental capacity" are nowhere to be found in the Illinois Probate Act's provisions concerning guardianship or the execution of powers of attorney. (For more on this topic, see "The varying standards of client capacity," LawPulse, 90 Ill Bar J 448 (September 2002).)

Defining mental capacity as a continuum is consistent with evolving medical knowledge as well as practical observations. A recent Chicago Tribune article observed as follows:

The reality of early-stage Alzheimer's and other dementias, as described by patients and several experts, is that the symptoms are not necessarily severe and they come and go. The symptoms include problems remembering things that happened recently – but not all of the time – and thought processes that slow down but can remain keen for a considerable time.

Judith Graham, Twilight Journey: More Alzheimer's cases are being diagnosed early, changing perceptions and treatment of the disease, Chicago Tribune Magazine at p 21 (July 25, 2004). The article quotes one dementia patient who "seems sharp as a tack" on her condition: "I don't want anyone writing me off yet." Id.

Longtime Chicago practitioner Howard "Scott" McCue, author of numerous articles on drafting wills and trusts, agrees with the concept of capacity as a continuum. "Lots of people have 'diminished' mental capacity," he says. "But that doesn't mean they're not competent. The law defines legal capacity like a light switch – it's either on or off." The reality, though, is very different: "In fact, when people start to lose their capacity, they do so slowly and painfully, in stages," McCue says. "It's very hard to draw the line."

Peoria elder law practitioner (and ISBA Assembly member) Susan Dawson-Tibbits also notes that a person's mental capacity may vary depending on the time of day. "Someone with dementia may have different levels of capacity over the course of a day depending on whether it's morning or evening or what medication they're on." Whether a person is in familiar surroundings may also make a difference in a person's mental capacity or confusion.

Experience and common sense

Both McCue and Dawson-Tibbits start with their own experience and common sense in evaluating a client's mental capacity. They'll ask questions designed to discover whether the client understands what he or she is proposing to do: whether the client knows who he is, who his family members are, and what his assets are, for example, and whether the client understands the consequences of, say, executing a power of attorney.

If the client understands what he or she's doing and the consequences of doing it, Dawson-Tibbits says she has no problem in carrying out the client's wishes. And, while medical opinions are helpful, diagnoses, or the lack thereof, aren't controlling. "You can't always assume that a person is incompetent because he has a label of, say, Alzheimer's attached," she says. "And you can't always assume a person is competent because the person doesn't have that label."

Experienced practitioners, including McCue and Dawson-Tibbits, recognize, however, that counsel's actions with respect to a client who may have diminished capacity are eminently subject to second-guessing and complaints by the client's relatives and heirs or beneficiaries. You might be confident your actions are both in your client's best interest and ethically proper, but how can you protect yourself from being haled into court, either as a party or as a witness, or from having to answer charges before the Attorney Registration and Disciplinary Commission?

The short answer is that you can't. Even though you do everything right, there may still be an unhappy and unreasonable family member who may commence litigation or file a complaint against you. The longer answer, though, is that there are certain steps you can take to diminish the likelihood of such actions or to enhance the likelihood that a court or other tribunal will uphold the propriety of your actions.

One measure might be to have your client undergo a medical evaluation immediately prior to executing a will or other document and to prepare a brief checklist before the examination of questions regarding your client's mental condition to have the physician answer. Rockford attorney Thomas S. Johnson suggests that in some cases videotaping the execution of wills and other documents and/or having fellow attorneys, instead of secretaries or friends or family members, act as witnesses, may be appropriate prophylactic measures.

Guardianship – the last resort

The revised commentary on Model Rule 1.14 enumerates at length possible protective measures other than guardianship that the lawyer is expressly permitted to take on behalf of a client, such as consulting with family members and others, using a "reconsideration period" to make sure a client isn't simply having a bad or muddled day, and using tools such as durable powers of attorney.

The commentary no longer contains a provision that encourages a lawyer to act as "de facto guardian" for a disabled client who lacks a guardian or legal representative. As revised, the official commentary on Model Rule 1.14 states, at note 7, "In many circumstances…appointment of a legal representative may be more expensive or traumatic for the client than circumstances in fact require."

The amended rule's and commentary's discouragement of guardianship is noteworthy given that the purpose of the proceeding is to protect someone who can't protect himself. But discouraging guardianship in all but the situations in which there is no alternative is in accordance with what most practitioners counsel. The Office of the State Guardian's Fact Sheet on Guardianship instructs as follows:

Guardianship is needed when a person is unable to make and communicate responsible decisions regarding his personal care or finances due to a mental, physical or developmental disability. Without more, a mental, physical or developmental disability is not sufficient for the appointment of a guardian. The fact that a person is elderly, mentally ill, developmentally disabled, or physically disabled does not necessarily indicate a need for guardianship…. Guardianship should be considered a last resort, a mechanism by which a person's legal rights are taken away for a sound and necessary purpose.

Says Chicago attorney Judith McCue, president-elect of the American College of Trust and Estate Counsel (and Scott McCue's wife), "Guardianship is intrusive, public, and costly." McCue says she doesn't like a client's not deciding on her own who's going to make decisions for her.

Susan Dawson-Tibbits echoes these sentiments, noting that "guardianship reduces a person to the legal status of a child." Guardianship, then, is a drastic measure, and has significant aspects that are not benign. Indeed, Dawson-Tibbits points out that guardianship is an adversary proceeding that the subject may and often does contest.

Of course, there are times when guardianship is simply the only, or clearly the best, option. Scott McCue suggests one scenario: A client with no family, or whose family members are far away, who is falling under the improper influence of someone seeking to take undue advantage of the client's diminished capacity by, say, getting him or her to write checks of five and six figures. In such a situation, says McCue, the law wants the person to have a guardian for his or her own protection.

Revealing client information

The drastic and adversary nature of guardianship highlights the special ethical conflict that the lawyer representing someone with diminished capacity may encounter. On the one hand, the lawyer has the duty of absolute loyalty to his client. He must protect his client's rights, which normally includes acting to carry out his client's wishes and maintaining the confidentiality of client communications.

On the other hand, if the client's mental capacity has diminished to the extent that the client is not able to make decisions in his own interest and is placed at risk of harm, protecting the client's rights may necessitate both disclosing information that would otherwise be confidential and taking action that might be against the client's wishes and might even, in the case of guardianship, deprive the client of rights.

The new version of Model Rule 1.14 expressly permits the attorney to consult with others and to reveal client information that would otherwise be confidential, though only as reasonably necessary to protect the client's interests; the former version was silent on those points. The new version also permits the attorney to take the extreme action of "seeking the appointment of a guardian ad litem, conservator or guardian."

But Dawson-Tibbits isn't convinced that seeking the appointment of a guardian includes filing the petition or representing the petitioner in a guardianship proceeding, both of which, by their nature, likely necessitate divulging confidential information contrary to the client's interests. For the present, at least, she says she'd be very hesitant to file a guardianship petition herself. The new model rule doesn't alter the adversary nature of the guardianship proceeding, after all. And where the attorney possesses information adverse to his client, Dawson-Tibbits believes there's a conflict, notwithstanding the language of the amended rule.

As alternatives, she suggests contacting family members, apprising them that there's a problem, and suggesting that one of them file a petition – but with separate counsel, as ABA Formal Ethics Op. 96-404 and the ABA's Annotation to Model Rule 1.14 counsel. Scott McCue agrees. "As lawyers, we owe a duty of loyalty and confidentiality to the client," he says. "It's very troublesome for the attorney who's been representing Mom or Dad for a long time to be asked to represent the children or an agent in having the client declared a disabled person. While the attorney may reveal physical problems that he's observed to the client's children without running afoul of attorney-client privilege, he must do so with great care and trepidation."

Lind suggests that the attorney might contact the Illinois Department of Aging or the Public Guardian for the county in which the client resides. "Either will act to protect the person, especially from elder abuse situations."

As a last resort, and only where there appears to be no other alternative, Dawson-Tibbits suggests that the attorney might file a guardianship petition himself. In such an event, she further suggests that the attorney advise the court that he is not representing any proposed guardian, but only trying to protect the interests of his client by this action. ABA Formal Ethics Op. 96-404 also cautions that if a lawyer does file a guardianship petition, he should not seek to be appointed guardian, except in the most exigent of circumstances.

Model Rule 1.14's discouragement of guardianship proceedings except where there's no other alternative, and the tricky ethical nature of a guardianship action, make it all the more important to explore alternatives to guardianship. If the Illinois Supreme Court adopts the amended rules, the practitioner will be permitted to consult with and even reveal client information to the client's family members, friends, and professionals such as physicians and social workers to attempt to discover the best alternative for the client whose mental capacity is sufficiently diminished so that he can't make all decisions for himself and is thereby at risk of harm. While that permission properly and necessarily remains circumscribed, the amendments to the rules recognize the reality that attorneys representing clients with diminished capacity must in some cases reveal their client's business to others in order to protect the client from injury.

An "unavoidably difficult" position

As any experienced practitioner knows, real life cases are all different, and are constantly challenging the attorney with new and difficult questions. In what may be the ethical understatement of all time, section (8) of the revised official commentary to rule 1.14 remarks, "The lawyer's position in such cases is an unavoidably difficult one."

No treatise, including the amended Model Rules and commentary, can possibly address all ethical or practical questions or instruct the practitioner on an exact course of conduct. But in Dawson-Tibbits' and the McCues' views, they do appear to be a significant step toward providing the attorney representing the older person with more guidance.

Resources

Ethics

• The ABA/BNA Lawyers' Manual On Professional Conduct is a comprehensive resource for any ethics question.

• Chicago attorney Judith McCue advises that the inspiration for the amendments to Model Rule 1.14 was a 1994 conference on law and the aging at Fordham University. The March 1994 Fordham Law Review describes that conference and is a helpful reference. Bruce A. Green and Nancy Coleman, Ethical Issues in Representing Older Clients, 62 Fordham L Rev 961 (Special Issue March 1994).

• ABA Formal Ethics Opinion 96-404, "Client Under a Disability," remains viable guidance on the subject. Informal Opinion 89-1530, "Disclosure of Disabled Client's Condition to Client's Physician," is also helpful, and is largely incorporated into the recently amended Model Rules.

• ISBA's Ethics Opinions are cross-referenced by the Rules of Professional Conduct on line at <http://www.isba.org/EthicsOpinions/ethicsoprules6-04.pdf>.

• Robert A. Creamer and Thomas P. Luning provide an introduction to the recommendations of the ISBA/CBA Joint Committee on Ethics 2000 for new rules of professional conduct for Illinois lawyers in "Proposed New Rules of Professional Conduct for Illinois Lawyers," 92 Ill Bar J 306 (June 2004) <http://www.isba.org/IBJ/jun04lj/p306.htm>.

• The American Bar Association's Ethics 2000 page has links to the Ethics 2000 revisions to the Model Rules of Professional Conduct redlined to show changes as well as to the current Model Rules and to the minutes and testimony of the Ethics 2000 Commission's meetings at <http://www.abanet.org/cpr/ethics2k.html>.

Alzheimer's, state-agency info

• The Alzheimer's Association's website, at <http://www.alz.org/>, provides an overview of the stages of Alzheimer's Disease, myths about Alzheimer's Disease, and fact sheets on aspects of Alzheimer's Disease.

• The Mayo Clinic has an online Alzheimer's information center at <http://www.mayoclinic.com/findinformation/conditioncenters/centers.cfm?objectid=0007C524-3895-1B32-82D780C8D77A0000>.

• The Illinois Guardianship and Advocacy Commission's website has a FAQ on guardianship at <http://gac.state.il.us/guardfaq.html>.

• The Office of State Guardian is a division of the Guardianship and Advocacy Commission. Its website, at <http://gac.state.il.us/osg/>, includes a link to a document entitled "A Practitioner's Guide to Adult Guardianship in Illinois."

• The Illinois Department on Aging has a page on Elder Abuse Prevention at <http://www.state.il.us/aging/1abuselegal/abuselegal-main.htm>.

Other ISBA resources

• Susan Dawson-Tibbits' article, "Guardianship and its Alternatives: What's Best for Elderly Clients?" 91 Ill Bar J 120 (March 2003) <http://www.isba.org/IBJ/mar03lj/p120.htm>.

• Daniel M. Moore's article, "Helping Clients Make the Most of Health-Care and Property POAs," 91 Ill Bar J 35 (January 2003) is available at <http://www.isba.org/IBJ/jan03lj/p35.htm>.

• ISBA's Elder Law Section newsletter is another excellent resource for the practitioner with an aging client base.

Helen W. Gunnarsson, a lawyer in Highland Park, is an Illinois Bar Journal contributing writer.