Client Capacity Considerations in Elder Law

Outline

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

Benefits

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.