How to Handle Clients with Diminished Capacity

With a growing elderly population, it’s not just estate planning attorneys that need to understand the ethical considerations in representing such clients.

By KATRIN MILLER ROTHGERY

Spring 2014

For estate planners and elder law practitioners, representing clients with diminished capacity is a regular part of the job. But as our population continues to grow older, lawyers practicing in all areas will increasingly see such clients. With those clients may come new ethical considerations.

In general, Colorado Rule of Professional Conduct 1.14 says a lawyer representing a client with diminished capacity should maintain a normal lawyer-client relationship as far as reasonably possible. Depending on the factual circumstances, the lawyer might also be obligated under the Rule to take protective action on the client’s behalf, including consulting with other professionals and/or seeking the appointment of a guardian or conservator. 

Because of this additional duty to take steps to protect a client with diminished capacity, Rule 1.14 contains an exception to the normal confidentiality requirements of Rule 1.6.  A lawyer in such circumstances is impliedly authorized to reveal information about the client to the extent reasonably necessary to protect the client’s interests.

The comments to Rule 1.14 acknowledge the extremely difficult situations that a lawyer might face in representing a client with diminished capacity.  For example, comment [8] reminds lawyers that even with the exception to Rule 1.6, a lawyer can only reveal information “reasonably necessary” to protect the client’s interests.  The comment also highlights the factual circumstance in which disclosure of the client’s condition could adversely impact the client’s interests, in that, for example, disclosure of such information might lead to involuntary commitment.

For a more in-depth discussion of these issues, sign up for the June 26 CLE program featuring medical professionals, elder law practitioners, and the Office of Attorney Regulation Counsel.

Kati Rothgery is Assistant Attorney Regulation Counsel with the Office of Attorney Regulation Counsel.