The Attorney’s Duty to Assess Competency

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The primary role of an attorney in providing counsel to a client is to represent the client’s interests.  However, there may come a time when the client becomes incapacitated and is no longer capable of acting in his or her best interest or following the advice of the attorney guiding the client to proceed in the client’s best interest.  Incapacity can result from mental illness, substance abuse, or physical ailments which prohibit the client from exercising sound judgment and protecting his or her interests.  Lack of capacity issues are of particular concern to trusts and estates attorneys as many of their clients are elderly and may have medical problems, particularly the onset of dementia.

When an Existing Client Becomes Possibly Incapacitated.

The attorney encounters a difficult predicament when a client becomes incapacitated and no longer capable of protecting his or her interests.  On the one hand it is the role of the attorney to protect the client’s interests.  On the other hand the attorney owes the client the duty of confidentiality and the duty of loyalty.  The attorney may desire to inform a third party of the client’s incapacity and inability to act in the client’s best interests or even institute a conservatorship proceeding to have a conservator appointed to act on behalf of the client.

There is no case law or rule in California directing the attorney to the correct manner in which to proceed.  The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) addressed the issue in Formal Opinion No. 1989-112.  COPRAC stated that an attorney for a possibly incapacitated client may not institute conservatorship proceedings for the client without the client’s consent.  The attorney would breach the duty of confidentiality and violate Section 6068(e) by disclosing the client’s secrets.

The attorney would also possibly violate California Evidence Code Section 952 which prohibits an attorney from disclosing communications protected by the attorney-client privilege.  Additionally, the attorney would be taking a position adverse to that of the client’s by initiating conservatorship proceedings and violate CRPC Rule 3-310.  In California, the only option available to the attorney faced with a possibly incapacitated client is to withdraw from representing the client.  However, the attorney is likely one of the few people advocating for the client’s best interests and the client will lose the protection provided by the attorney.

The American Bar Association (ABA) view allows the attorney to initiate conservatorship proceedings on behalf of a client where the attorney reasonably believes the client cannot adequately act in the client’s own interest.  The ABA rule is followed in the majority of states.  The Trusts and Estates Section of the California State Bar sponsored legislation allowing for an attorney to act if the attorney believes that the client has become incapacitated.  The proposed legislation provides that if an attorney reasonably believes that the client has significantly impaired capacity and as a result thereof (1) is at risk of substantial physical, financial or other harm unless action is taken, and (2) cannot adequately act in the client’s own interest, the attorney may, but is not required to, notify those individuals or entities that have the ability to take action to protect the client.

There is precedent in California for an exception to the duty of confidentiality.  In 2003, Business & Professions Code Section 6068(e) was amended to allow an attorney to disclose confidential information to the extent the attorney reasonably believes is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm.

When A Potential Client is Possibly Incapacitated.

In order to execute a testamentary document, at the time the document is executed the person must (1) understand the nature of the testamentary act; (2) understand and recollect the nature and situation of his or her property; and (3) remember and understand his or her relationship to living descendants, spouse, and parents, and those whose interests are affected by the will.

A person possessing the three attributes above generally will be found to have the capacity necessary to create, modify or revoke an estate plan.  However, a person may lack capacity when at the time the document was executed, the person suffered from a mental disorder including delusions or hallucinations, which resulted in leaving his or her property in a way which he or she would not have done without the delusions or hallucinations. California Probate Code Section 6100.5(a)(2); see  Estate of Perkins (1925) 195 Cal. 699, 703-704.  Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667, 1678-1679.

An attorney should not prepare an estate plan for a client who the lawyer reasonably believes does not possess the required capacity.  However, the American College of Trust and Estate Counsel (ACTEC) states that, “because of the importance of testamentary freedom, the lawyer may properly assist clients whose testamentary capacity appears to be borderline.”  ACTEC Commentary on MRPC 1.14 at 132.  ACTEC also advises that if the attorney has doubts regarding the client’s capacity, the attorney should preserve evidence of the client’s competency.

An attorney should inquire into a client’s capacity if the attorney believes that the client may lack the required capacity to create an estate plan in order to fulfill the duty of loyalty owed to the client.  The attorney should proceed with preparing the estate plan if the attorney determines the client possesses the necessary capacity.  However, the attorney has no duty to investigate the client’s capacity as the attorney cannot be liable of malpractice for preparing an estate plan for an incompetent person.  Additionally, the attorney has no duty to beneficiaries or heirs to investigate the client’s capacity.  Moore v. Anderson Keigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287.

There are procedures for preparing an estate plan for a person who currently lacks the competency necessary to enter into an estate plan.  If the person executed a Power of Attorney appointing an agent or attorney in fact and granted the agent the ability to conduct estate planning, then the agent could create, modify or revoke an estate plan for the incapacity person on their behalf.  However, if the incapacitated person did not execute a Power of Attorney while competent, a conservatorship proceeding will need to be filed to appoint a conservator of the incapacitated person.  The conservator will be able to create, modify or revoke an estate plan for the incapacitated person pursuant to a substituted judgment proceeding.

Daniel T. Quane, Esq. is an attorney with the Doyle Quane Trusts and Estates Law Group, Danville, California. Our vision brings together a team of highly experienced and distinguished family, trust and estate attorneys all of whom deliver specialized knowledge, strategic insight and tactical planning.  Since 1984 we have dedicated ourselves to this mission. We are very proud of our six attorneys and our talented support team which includes California State Bar Certified Family Law Specialists, brilliant staff attorneys, and committed and experienced Certified Paralegals and technical staff. We practice our profession with integrity, strength and commitment to our clients.

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