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Understanding Legal Capacity and Ethics
PRACTICE GUIDE • July 2018
David Godfrey and Charles Sabatino, American Bar Association Commission on Law & Aging
This Practice Guide is part of our Skills-Based Training curriculum, focused on providing practical tools for working
with older adults.
American Bar Association Commission on Law & Aging
The ABA Commission on Law and Aging is a collaborative and interdisciplinary leader of the Association’s work to strengthen and secure the legal rights, dignity, autonomy, quality of life, and quality of care of aging persons. The Commission accomplishes its work through research, policy development, advocacy, education, training, and through assistance to lawyers, bar associations, and other groups working on issues of aging.
Introduction
Attorneys who work with older adults will inevitably face the challenge of determining whether a client or a potential client has decision-making capacity. While most older clients will not have impaired capacity, some will. Clear and relatively obvious dementias will impair capacity, and the prevalence of such dementias increases with age. However, clients with early stages of dementia or mild cognitive impairment may have subtle decisional challenges. This Practice Guide and accompanying training offers a conceptual framework and practice tips for addressing questions of client capacity.
The Basics
There are a few key items to remember when addressing questions of capacity:
- The law presumes that adults have capacity.
- Attorneys and advocates should focus on their client’s ability to make decisions—not on whether the person is odd, uncooperative or socially outgoing.
- Advocates should be careful not to let stereotypes associated with aging drive their determination of capacity.
- In a legal setting, the lawyer makes the final determination, even if that determination is to get an assessment from a medical professional.
Legal Standards of Diminished Capacity
There are three facets of legal thinking about diminished capacity: standards of capacity for specific legal transactions under statutory and case law; standards of diminished capacity in state guardianship law; and ethical guidelines for assessing capacity, as set out in Model Rule 1.14 and the comments to the rule.
Standards of capacity for specific legal transactions
The law generally presumes that adults have capacity unless they have been adjudicated as incapacitated, for example, through guardianship or conservatorship. The definition of “diminished capacity” varies, depending on the transaction or nature of the decision. Definitions of legal capacity are set out in either state statutory and/
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or case law; therefore, attorneys should be familiar with specific state-based standards. Examples of common transaction-specific legal standards include the following:
Testamentary Capacity Typically, at the time of executing a will, the testator must have capacity to know the natural objects of their bounty, to understand the nature and extent of their property, and to connect these elements sufficiently to make a disposition of property according to a rational plan. The testator does not have to have capacity consistently over time—only at the time the will was executed. Whether the testator is of “sound mind” of is the terminology that is still commonly used. Capacity to Execute a Power of Attorney
The standard of capacity for creating a power of attorney has traditionally been based on the capacity to contract. However, some courts have also held that the standard is similar to that for making a will. Contractual Capacity Courts generally assess the party’s ability to understand the nature and effect of the act and the business being transacted. If the act or business being transacted is highly complicated, a higher level of understanding may be needed to comprehend its nature and effect. Capacity to Convey Real Property To execute a deed, a grantor typically must be able to understand the nature and effect of the act at the time the conveyance is made.
Other legal acts have specific definitions of capacity articulated by statutes and courts in different jurisdictions. Again, the standards listed above are general examples, and attorneys should look to their specific state statutes and case law for guidance. In absence of a clear standard in a statute or case law, an attorney should confirm that the client understands the essential elements of the legal action, understands the available options, has made a choice and understands the consequences of the choice being made. On the most basic level, a lawyer’s obligation to assess a client’s capacity is essential to a lawyers’ obligation under Model Rule of Professional Conduct 1.4 (b) to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Rule 1.2, directs the lawyer to follow the client’s decisions regarding the objective or goals of the representation. Doing this requires that the client understand the options.
Guardianship
State guardianship and conservatorship laws rely on broader and more encompassing definitions of incapacity. The criteria for a finding of incapacity differ among the states, but in all states, the law starts with the presumption of capacity. The burden of proof is on the party bringing the petition to establish sufficient diminished capacity to justify the appointment of a guardian or conservator. Varying factors or tests that are used in some states include disabling condition, functional behavior as to essential need, and/or cognitive functioning. In most states, there is an added threshold finding that guardianship is necessary and is the “least restrictive alternative.”
NCLER’s training and Chapter Summary on guardianship offer more in-depth information on guardianship and standards of capacity.
Model Rule 1.
Model Rules of Professional Conduct, Rule 1.14: Clients with Diminished Capacity, recognizes: first, the goal of maintaining a normal client-lawyer relationship; second, the discretion to take protective action in the face of diminished capacity; and third, the discretion to reveal confidential information to the extent necessary to protect the client’s interests. The rule triggers protective action when an attorney reasonably believes that a client
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Section B: Transaction-Specific Elements of Legal Capacity
This section of the Worksheet requires that the attorney note the legal elements of capacity for the particular task at hand (check statutes and case law) and compare them with the client’s understanding, appreciation, and functioning with the relevant legal elements.
This process may occur over the course of one or several meetings with the client. Ultimately, the attorney must form a judgment about the client’s understanding of the respective legal elements of the transaction at issue, and regarding the client’s capacity overall to undertake the transaction(s) at issue.
Section C: Task-Specific Factors in Evaluating Capacity
This section of the Worksheet is designed to take into consideration the ethical factors set out in the Comment to Rule 1.14 of the MRPC. Utilizing the criteria, attorneys should consider the following:
- Ability to articulate reasoning behind the decision (the client should be able to state the basis for their decision and the stated reasons should be consistent with the overall stated goals and objectives);
- Variability of state of mind (the extent to which the individual’s cognitive functioning fluctuates);
- Appreciation of consequences (for example, does the client understand that without a legal challenge to an eviction, he or she may be without a place to live);
- Substantive fairness of decision (while lawyers normally defer to client decisions, before taking action a lawyer should consider the if the action may or will injure others, and if so, further review the action before deciding to move forward);
- Consistency with lifetime values (decision normally should reflect the client’s lifelong or long-term perspective); and
- Irreversibility of the decisions (important to protect individuals from irreversible events, and calls for caution on the part of the attorney).
Of these six factors, the first three are “functional” in the sense that they reflect the cognitive functioning of the individual. These may be supported by observation of the signs of diminished capacity described previously. The latter three are “substantive” in that they look at the content and nature of the decision itself. A careful weighing and balancing of these factors along with the specific elements of legal capacity for the transaction at hand will assist the lawyer to make a preliminary judgment of capacity.
Section D: Preliminary Conclusions about Client Capacity
After evaluating sections A, B, and C of the Worksheet, an attorney will need to weigh all the data obtained up to this point. With the collected data, the lawyer should make a categorical assignment of the fit between the client’s abilities and the legal capacity at issue. Unfortunately, there is no simple score that will easily generate a conclusion. The Worksheet provides four conclusory options with suggested actions for each. The conclusion is ultimately a professional judgment that is aided by the systematic consideration of signs of incapacity, the client’s understanding of the legal transaction, and the factors laid out in the Model Rule. If the attorney feels uncertain as to whether the observed problems represent “mild” versus “more than mild” issues, this would be an indication to consult with a clinician.
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Working with Clinicians
Knowing how to work with clinical consultants or formal evaluators is extremely important if your conclusion leads you to seek consultation or evaluation. The Handbook for Lawyers in the Resources below provides extensive guidance for working with clinicians.
Conclusion
Assessing capacity is something lawyers do every time they communicate with a client and try to confirm that the clients understands the options and the choice that is being made. When it is unclear if the client is able to understand, extra steps should be taken to understand the client’s ability to understand. The model rules of professional conduct offer guidance for working with a client with diminished capacity. Clinical approaches to capacity differ from legal approaches in important ways. Legal definitions of capacity tend to set forth general conceptual definitions, e.g. Capacity to do X requires the ability to appreciate the nature and consequences of X and the functional abilities to perform X. Clinical approaches evaluate the multiple cognitive, emotional, and physical elements that are necessary to do X. Clinical assessment measures these elements on a sliding scale that does not necessarily result in a Yes/No answer to capacity. While the law is gradually becoming more nuanced in its approach to capacity, it still normally seeks a yes or no answer.
Additional Resources
- David Godfrey, ABA Commission on Law & Aging: david.godfrey@americanbar.org
- Charles P. Sabatino, ABA Commission on Law & Aging: charles.sabatino@americanbar.org
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
- Competency: Reforming Our Legal Fictions by Charles Sabatino and Suzzanna L. Bassinger, Journal of Mental Health and Aging, pp. 119- 144 (2000)
- NCLER Legal Basics Training: Supported Decision-Making
- NCLER Advanced Training: Older Adults and Health Care Decision-Making in Clinical Settings
- NCLER Legal Basics Training: Overview of Guardianship and Alternatives to Guardianship
- ABA Model Rules of Professional Conduct
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings
- Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists
Case consultation assistance is available for attorneys and professionals seeking more information to help older adults. Contact NCLER at ConsultNCLER@acl.hhs.gov.
This Practice Guide was supported by a contract with the National Center on Law & Elder Rights, contract number HHSP233201650076A, from the U.S. Administration on Community Living, Department of Health and Human Services, Washington, D.C. 20201.
Other Observations/Notes on Potential Undue Influence
Capacity Worksheet for Lawyers
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u Behavioral Functioning Examples
Delusions Feels others out “to get” him/her, spying or organized against him/her Fearful, feels unsafe
Hallucinations Appears to hear or talk to things not there Appears to see things not there Misperceives things
Poor Grooming/Hygiene Unusually unclean/unkempt in appearance Inappropriately dressed
Other Observations/Notes of Functional Behavior
Mitigating/Qualifying Factors Affecting Observations Ways to Address/Accommodate
Stress, Grief, Depression, Recent Events affecting stability of client
Ask about recent events, losses Allow some time Refer to a mental health professional
Medical Factors Ask about nutrition, medications, hydration Refer to a physician
Time of Day Variability Ask if certain times of the day are best Try mid-morning appointment
Hearing and Vision Loss Assess ability to read/repeat simple information Adjust seating, lighting Use visual and hearing aids Refer for hearing and vision evaluation
Educational/Cultural/Ethnic Barriers Be aware of race and ethnicity, education, long-held values and traditions
Capacity Worksheet for Lawyers
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B. RELEVANT LEGAL ELEMENTS - The legal elements of capacity vary somewhat among states and should be modified as needed for your particular state. General Legal Elements of Capacity for Common Tasks
Notes on Client’s Understanding/ Appreciation/Functioning Under Elements Testamentary Capacity - Ability to appreciate the following elements in relation to each other:
- Understand the nature of the act of making a will.
- Has general understanding of the nature and extent of his/her property.
- Has general recognition of those persons who are the natural objects of his/her bounty.
- Has/understands a distribution scheme.
Contractual Capacity The ability to understand the nature and effect of the particular agreement and the business being transacted.
Donative Capacity An intelligent perception and understanding of the dispositions made of property and the persons and objects one desires shall be the recipients of one’s bounty.
Other Legal Tasks Being Evaluated & Capacity Elements:
The more serious the concerns about the The higher the function needed in the following factors… following abilities…
Is decision consistent with client’s known long-term Can client articulate reasoning leading to this values or commitments? decision?
Is the decision objectively fair? Will anyone be hurt Is client’s decision consistent over time? Are pri- by the decision? mary values client articulates consistent over time?
Is the decision irreversible? Can client appreciate consequences of his/her decision?
C. TASK-SPECIFIC FACTORS IN PRELIMINARY EVALUATION OF CAPACITY
