It is only fitting that we start this article off with some scary legal jokes as we enter the “spooky” season. What type of work is the favorite for a skeleton? Pro Bone-o. Who was the gourd’s heir? The next of (pumpkin)kin. How do ghosts resolve their disputes? Ar-boo-tration.
Another spooky idea: an estate planner isn’t the only lawyer that is required to evaluate their client’s ability. All lawyers are required to assess their clients’ capacity during the entire representation.
Do not worry if you haven’t assessed the capacity of your client. You may have assessed your client’s capability without realizing it. This article will give you some tips on how to assess your client’s capability in the future if this is something that you haven’t done.
What does it mean to have a diminished capacity?
Many people believe that diminished capacity is related to age. This is not always the case. Being older can make it more likely that someone will suffer from diminished capability. Old age is not a sign of diminished ability. There are other forms of diminished capability that do not have anything to do with age.
The Minnesota Rules of Professional Conduct do not provide a clear definition of diminished capability, but Rule 1.14 offers some helpful guidance. Rule 1.14 says that diminished capacity may be due to “minority or mental impairment” as well as other reasons.
Minority is an easy-to-understand form of diminished capability. You have a diminished capacity client if you have a child client.
Mental impairment is more broad, but it is understood to be something that makes a person unable to think clearly. It is not necessary for a mental impairment to be permanent to qualify as “diminished capability.” For instance, someone who is drinking or using drugs may have diminished capacity. When someone has suffered the tragic death of their spouse they may not be able to think clearly.
Remember that diminished capacity does not only occur with age.
How do you assess capacity?
You can assess capacity in different ways, depending on your circumstances.
It is reasonable, for example, that an estate planner has formal conversations about capacity with their clients. The estate planner can choose to use an official capacity test, such as a mini mental status exam. This questionnaire allows the estate planner to get a better understanding of their client’s view of reality and capacity. A planner can also ask casual questions about current events or the family history of a client to assess their level of capability.
It is unlikely that it would be reasonable for non-estate planning professionals to have an official conversation about capacity with every client. You can assess your client’s capacity by having everyday conversations. You must investigate if your client’s words cause you to doubt their ability.
Imagine you’re an attorney from Minneapolis. You’re assisting a customer in a property transaction on the North Shore. You are assisting a client in a real estate transaction involving property on the North Shore. It would be strange to hear this comment since Minnesota isn’t known for earthquakes or hurricanes. You should now take a few moments to assess whether or not your client’s capacity is diminished. Maybe the client is a newcomer to Minnesota, and does not know that Minnesota is free of earthquakes or storms. The strange comment would be excused. If your client has lived in Minnesota all his life, this comment could indicate a larger problem. According to the Rules of Professional Conduct you are required to investigate your client’s ability.
No matter what type of representation you provide, regardless of whether or not you are formally assessing the client’s ability to pay, it is important that all attorneys keep this in mind.
Unsure if your client has diminished capacity?
You have resources at your disposal if, after conducting a reasonable investigation you still are unsure if your client has diminished capacity. You can first call the Office of Lawyers Professional Responsibility for an opinion. If you want to get a one-time opinion on whether or not you’re following the Rules of Professional Conduct, this is an excellent tool.
You can also retain an ethics lawyer to guide you on how to comply with the Rules of Professional Conduct. You can reveal confidential information in order to obtain legal advice on your compliance with the Rules of Professional Conduct.
Conclusion
All lawyers must determine whether their clients are of sound mind. You should seek out resources if you suspect that your client has diminished mental capacity. This will not only protect your client but also your license, saving you a lot of trouble down the road. Happy Halloween!
The post Assessing capacity: A requirement that extends beyond estate planners first appeared on Attorney at Law Magazine.