WHAT ATTORNEYS NEED TO KNOW ABOUT A CLIENT’S COGNITIVE CAPACITY

I.

SYNOPSIS

As the population of older adults grows, estate and probate attorneys will have increasing interactions with clients with diminished decision-making ability. Cognitive impairment, the most common cause of diminished capacity in older adults, may impact a range of acts that carry legal import, including entering into an attorney-client relationship, making or amending a testamentary disposition, appointing a power of attorney, and executing a trust agreement. The specter of incapacity can undermine the legal effectiveness of a client’s decisions and serve as a predicate for challenges to the validity of a client’s estate plans. Issues of client capacity also affect the attorney-client relationship and representation. Given the implications of capacity for legal practice, attorneys should have a basic understanding of capacity and become familiar with signs of cognitive impairment, available resources for cognitive assessment, and best practices in meeting with clients who may be cognitively impaired.

II.

CALIFORNIA ATTORNEYS’ LEGAL DUTIES AND ETHICAL OBLIGATIONS TO CLIENTS WITH DIMINISHED CAPACITY

A.

Statutory Guidelines Regarding Capacity and Legal Duties to Clients with Cognitive Impairment

Under the California Probate Code, a person’s capacity to make a specific decision is presumed.01 This rebuttable presumption may be overcome by substantiating evidence of one or more deficits in that individual’s mental function and a correlation between those deficits and the proposed decision or act in question.02 Notably, diagnosis of disease alone does not disqualify a person from contracting, conveying property, or executing a will or trust agreement.03

A non-exhaustive list of deficits is enumerated under the Probate Code and classified under the headings, “alertness and attention,” “information processing,” “thought processes,” and “ability to modulate mood and affect.”04 The deficits must cause significant impairment to an individual’s “ability to understand and appreciate the consequences of” the proposed decision or act.05 In determining whether the deficit is significant enough to support a finding of incapacity to make a decision or take a particular action, courts may consider the “frequency, severity and duration of periods of impairment.”06

The degree of client understanding required is dependent upon “the complexity of the decision.”07 Whether a client possesses sufficient capacity is situational, dependent upon the substantive law and the specific decision to be made. For example, a client may have testamentary capacity to execute a simple will, but lack the competence to execute a complex contract.08 Thus, a client may have the capacity to make some decisions, but not others.

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