Article on How to Not Lose Your Head When Your Client is Losing His: Operating in the Gray Zone of Diminished Capacity

Matt G. Lueders recently published an Article entitled, How to Not Lose Your Head When Your Client is Losing His: Operating in the Gray Zone of Diminished Capacity, Est. Plan. & Cmty. Prop. L.J., Vol. 12 Book 1 (Fall 2019). Provided below is the introduction to the Article.

    As our population ages, it is increasingly important for estate planning professionals not only to assist clients with planning for eventual death, but also to aid clients with developing a plan with potential diminished capacity and incapacity. The increasing frequency of incapacityy in our society has caused many issues for estate planning attorneys and the manner in which he or she counsels and represents their clients. Attorneys must be aware of the possibility of client incapacity, and the proper steps for determining handling a client's diminished capacity or incapacity.

    The estate planning attorney must understand substantive tax techniques, distribution mechanisms, and probate laws that accompany an estate planning and administration; however, the attorney cannot stop there. He or she must also embrace the human side of estate planning - the side involving a client's emotions, mental and psychological state, and relationships among family members and friends. This article will discuss the awareness surrounding applicable legal standards of capacity, the legal and ethical rules important to estate planning attorneys with respect to capacity and undue influence, and the practical steps than an estate planning attorney can undertake when representing a client with diminished capacity or incapacity. This article will not spend a great deal of time discussing drafting for incapacity. For detailed discussion in that regard, the reader is encouraged to see Wesley L. Bowers' article "Mind the Gap: Advanced Planning Techniques for Incapacity" presented to the State Bar of Texas 2016 Estate Planning & Probate Drafting Course.