Elderlaw & EthicsCompetency

Kimberly E. O’LearyProfessor, Thomas M. Cooley Law School

Director, Sixty Plus, Inc. Elderlaw ClinicLansing, Michigan

The Center for Elder Rights Advocacy presents

About This Webinar

Handouts are available on legalhotlines.org.

A recording of the webinar will be available on legalhotlines.org.

Today’s presentation is part of a three-part series exploring three of the unique ethical issues that attorneys are presented with when working with older clients. Dates for upcoming webinars:•Confidentiality: December 3rd, 2PM-3PM EDT•Multi-representation: January 16th, 2PM-3PM EDTRegister at www.legalhotlines.org

Poll Feature

You can respond two different ways: online or via text.

Have a question? Submit them at www.PollEv.com/cera throughout the duration of the webinar.

Today’s Presenter: Kimberly E. O’Leary

A Professor of Law and Director of the Sixty Plus, Inc. Elderlaw Clinic at the Thomas M. Cooley

Law School.

Audience Participation

Learning outcomes

• During this presentation you will learn:

• How to distinguish between two different types of competency questions that arise in practice

• How to apply checklists to analyze those questions

• How ethics rules affect your analysis

• Practical tips for dealing with these issues

2 different issues

• A new client or a returning client in a new matter• An existing client in an ongoing case

A Question for You

First issue: a new client or an existing client with a new matterEthics rules focus on whether a principal/agent relationship can be established

•Rule 1.2

• Shall abide by client’s decisions about objectives and consult about means

• Shall abide by client’s decision whether to settle a case

•Rule 1.4

• Must inform where “informed consent” is required, must “reasonably consult” about means and “reasonably inform” about status

Use checklist: How to Handle a Capacity

Issue with a Prospective Client (originally prepared for the ICLE Partnership ©2013)Handle a Capacity Issue with a Prospective client.doc

• Step 1: Meet with the prospective client alone

• Step 2:Consider the facts that indicate incapacity

• Incapacity is usually overestimated

• Use capacity checklist to rule out other conditions

• Step 3:Review the standards of competency in your jurisdiction (usually case law but sometimes statutory)

How to Handle a Capacity Issue with a Prospective Client (continued)

• Step 4: Decide whether you are comfortable representing the person • (If yes, document how to facilitate good communication, if no,

consider a proxy [step 6]; if maybe, go to steps 5 & 6)

• Step 5: Consider medical testing

• Step 6: Explore representing the person through an agent (preferably an attorney in fact)

• Step 7: Document

• Step 8:Plan for lack of capacity in the future (disclosure forms)

A 79-year-old woman seeks a Will. She tells you her primary asset is her home, which is paid for She then confides that she has a collection of Picasso paintings

which she has hidden in the walls so the Government won’t find out and take away her Medicaid.

She has a guardian.

Case Example # 1

A. Does the fact that she has a guardian prevent her from executing a Will?

B. What facts cause you to worry that she might not meet the need for Will competency in your state?

C. Does the fact that she has a guardian prevent her from executing a Will?

A man calls and tells you he is home-bound but wants to meet with a lawyer to give his daughter partial ownership of his home because she has moved in to take care of him.

When you go out and meet with him, he doesn’t know why you are there but is happy to have a visitor.

He is in early stages of dementia. You ask him if he wants to transfer an interest to his daughter, he

says “She looks just like my wife. She’s been gone five years now.”

He says “they take good care of me here.”

Case Example #2

1. What facts lead you to question whether he is competent to engage your services?

2. What steps will you take to determine whether you can help him?

A woman in a coma is admitted to a nursing home and needs Medicaid to pay for bills.

She has no known family and had been living by herself before she had a brain hemorrhage.

Her next-door neighbor contacted your office to see if you can help.

The neighbor tells you the woman talked about getting a power of attorney about fifteen years ago but she doesn’t know any of the details.

Case Example #3

1. Can you represent the woman in obtaining Medicaid?

2. What steps will you have to take before you can enter an appearance on her behalf?

Questions

Do you have any questions?

Audience participation!

If a current client became unable to make decisions while his or her case was ongoing what would you do first:

a) follow the client’s wishes no matter what

b) look to Rule 1.14 for guidance

c) send the client to a doctor for testing

d) look to someone else to make a decision for the client

e) seek the appointment of a guardian

f) seek the appointment of a GAL

Second Issue: Capacity Question Arises During Representation

What makes this different is that you have already agreed to work on someone’s behalf, decisions might need to be made, and failure to make a decision could harm the client.

Second Issue: Capacity Question Arises During Representation

Rule 1.14 comes into play

•If capacity to make adequately considered decisions in connection with a representation is diminished the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

•If 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.

How to Handle a Capacity Issue that Arises During Representation

• Step 1: Review your ethical obligations

• Step 2: Identify the reason you question your client’s capacity Comment 6 to Rule 1.14

• Ability to articulate reasoning behind decision;

• Variability of state of mind

• Appreciation of consequences of decision

• Irreversibility of decision

• Substantive fairness of transaction

• Consistency with lifetime commitments

If you previously assessed capacity, review and document changes

Is there medical information?

How to Handle a Capacity Issue that Arises During Representation

• Step 3: Is there a legal test of capacity? Are basic civil rights at risk (e.g. guardianship defense)

• Step 4: Is the Case in a Critical Phase? If yes

• Can you assess what your client would want based on previous conversations?

• Has the client authorized you to consult with others? See authorization form• If yes, act as you believe the client would act

• If you do not know what your client would do and have no authorization to consult, is there a substitute decision-maker appointed by the client or court? • If yes, consult. If no, go to court and request a GAL.

How to Handle a Capacity Issue that Arises During Representation (continued)

• Step 5: Consider medical testing. If no emergency decision, discuss with client if possible. Consider capacity assessment.

If no testing possible, explore asking client to allow you to consult, appointing a GAL or withdrawing if client asking for something you strongly believe is against client’s interests.

You represent a 90-year-old man who bought and paid for new windows for his home but they were never delivered.

When you filed the Complaint a year ago, he explained the situation and seemed to understand everything about his case.

The opposing party made a settlement offer for 2/3 the value of what your client paid.

When you met with your client, he seemed confused. He kept asking you to start over and when you asked him what

he wanted you to do, he just looked perplexed and said, “What’s that?”

The trial is set for next month and he is the key witness.

1. What steps will you take to see if you can engage your client to make a decision?

2. If you can’t engage your client, do you have information to know what he would decide?

3. Are there client proxies available?4. What concerns do you have about asking for the appointment of a GAL or

guardian?

A client engaged you to draft a estate planning documents. She couldn’t decide some key provisions so it has been six months since she first came in.

When she comes in for the execution, she correctly answers all of the questions about who are in her family, what is the date, what property she owns and who she wants to get her property.

When she gets to a deed you prepared, at her instruction, to retain a power of appointment in a life estate for herself, then if she owns the property for it to pass to her children equally upon her death (a ladybird deed), she has no idea why she would do such a thing.

She doesn’t understand what it is.

The client is on Medicaid. You know that under your state’s Medicaid estate recovery program this type of deed exempts the property from recovery. She doesn’t remember having ever discussed this with you before, even though you discussed it extensively with her.

1. Can she execute the will?2. Can she execute the deed?3. What steps might you take to help

her understand the deed so that she can execute it?

4. What concerns might you have if she executes only the Will and not the deed?

Questions

Do you have any questions?