Client Capacity Considerations in Elder Law

Legal and Ethical Challenges When Evaluating Clients

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, March 15, 2012

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will provide guidance to counsel about questions of capacity for elderly clients, including the capacity requirements for legal transactions, existing legal and ethics guidelines for assessing client capacity, and methodology used by practitioners to evaluate clients.


As the baby boom generation ages, counsel faces the growing challenge of representing older clients who may be starting to suffer capacity-related problems in decision-making abilities.

The ABA Model Rules of Professional Conduct provide some guidance for the practitioner to identify and tackle situations where the client's ability to make adequately considered choices is diminished.

Counsel must be prepared at times to take protective action on a client's behalf—if that requires consulting third parties, counsel must understand what client information may be revealed. The involvement of a client's family during representation raises additional ethical and professionalism challenges.

Listen as our authoritative panel with elder law scholarship and practice experience provides an overview of capacity requirements for various transactions and legal ethics guidelines for assessing client capacity under the ABA Model Rules. The panel will also discuss practical analyses to evaluate client capacity and steps to take as a result of a capacity analysis.



  1. Overview of Client Capacity Requirements
    1. Capacity Requirement to Commence Attorney-Client Representation
    2. Capacity Requirement for Estate Planning, Contract, & Other Transactions
    3. Increasing Capacity Cases & Aging Population
  2. Capacity for Legal and Ethics Guidelines Under ABA Model Rule 1.14
    1. Presumption of Capacity
    2. Maintaining Normal Client-Attorney relationship
    3. Attorney’s Ability to Take Protective Action on Client’s Behalf
    4. Discretion to Reveal Confidential Information
    5. Considerations for Clients with Family Members
  3. Analysis Tools to Evaluate Client Capacity
    1. Attorney Observation of Client
    2. ABA Model Rule 1.14 Test for Protective Action
      1. Existence of Diminished Capacity
      2. Risk of Substantial Harm
      3. Inability to Act Adequately in Own Interest
  4. Practitioner Responses to Client Capacity Analysis
    1. Practitioner Techniques for Bolstering Client Capacity
    2. Referral of Client for Clinical Assessment or Consultation
    3. Obtaining Capacity Report


The panel will review these and other key questions:

  • What practices can counsel employ to determine capacity of an elderly client?
  • What actions are available to protect a client with capacity-related problems?
  • What ethical obligations does counsel of an incapacitated client have?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Kim Boyer
Kim Boyer

Boyer Law Group

She is Certified as an Elder Law Attorney by the National Elder Law Foundation. Her practice includes the areas of...  |  Read More

Kasey Libby
Kasey Libby

The Adams Law Offices

He practices estate planning and related litigation, providing clients with guidance in the creation of estate plans...  |  Read More

Teresa D. Lancaster
Teresa D. Lancaster

Bogutz & Gordon

She is a Licensed Fiduciary and serves in the Arizona Chapter of the National Academy of. Elder Law Attorneys. She...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Audio