Once in a while, don’t we all feel like we have “diminished capacity?” Those days where we can barely drive home from work, and we just want to collapse on the sofa watching Seinfeld re-runs? But, from a legal standpoint, diminished capacity means much more than a bad day at the office. The Washington Rules of Professional Conduct (RPCs), which govern attorneys’ ethical behavior, identify three circumstances that create the potential for a client’s decision-making ability to be diminished: if the client is not an adult, if the client has a mental impairment, or “some other reason.” RPC 1.14(a).
On the afternoon of May 16, Sherry and I presented a one-hour continuing legal education course for the King County Bar Association on the ethical issues involved in representing clients who have diminished capacity. An hour barely scratched the surface of the myriad of issues involved. In our practice areas of business law, estate planning and probate, issues involving diminished capacity frequently arise. For example, business owners can suffer from mental impairments, including alcohol abuse and drug addiction, that severely impact their ability to understand and implement legal advice.
As another example, my office frequently gets calls from folks who would like us to do estate planning for an elderly parent. We appreciate those inquiries, and would love to help. But well-meaning children sometimes don’t realize that, generally, the elderly parent, as the client, needs to be the one that an attorney communicates with and the person who makes the decisions regarding all aspects of the estate planning documents. As their child, you don’t necessary have the authority to step in and do this work on your parents’ behalf.
In order to execute a Will, the client must have “testamentary capacity.” “[A] person is possessed of testamentary capacity if at the time he assumes to execute a will he has sufficient mind and memory to understand the transaction in which he is then engaged, to comprehend generally the nature and extent of the property which constitutes his estate and of which he is contemplating disposition to recollect the objects of his bounty.” In re Bottger’s Estate, 14 Wn.2d 676, 685, 129 P.2d 518 (1942). As anyone who has worked with people suffering from dementia know, this standard isn’t always cut and dry. One day, the client may have testamentary capacity. But the next day, it’s a different story.
Sherry and I enjoyed the opportunity to research this challenging ethical topic for the King County Bar Association. If you are involved in an estate planning, probate or business case in which diminished capacity may be an issue, please give us a call. We’d be happy to help.
Photo credit: Elizabeth Ellis on Flickr