Wednesday, January 11, 2012
Ethically Representing Clients with Diminished Mental Capacities
As the Baby Boomer generation ages, more estate planner attorneys are finding themselves representing clients with age related cognitive impairments. The Illinois Rules of Professional Conduct govern the obligations an Illinois attorney has when representing a client with diminished mental capacities. Two of the most applicable rules are Illinois Rules 1.6 (confidentiality) and 1.7 (conflict of interest). According to Rules 1.14, “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."
Many times, elderly clients are accompanied by their adult children when meeting with their attorney. Attorneys should identify who the client is at the beginning of attorney-client relationship and should establish the scope of representation at the outset. Rule 1.7 governs situations where parties involved have competing interests, and this rule gives instructions as to confidences and multiple representation.
As more attorneys find themselves representing elderly clients, it is imperative that they research and fully understand the laws of their state to ensure that they ethically represent clients with diminished capacities.
See Kerry R. Peck, Ethical Issues in Representing Elderly Clients with Diminished Capacity, 99 Illinois Bar Journal 572 (Nov. 2011).