![]() ![]() The fact that a client suffers a disability does not diminish the lawyer's obligation to treat the client with attention and respect. For example….it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions. Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client's own well-being. In particular, a severely incapacitated person may have no power to make legally binding decisions. ![]() When the client is a minor or suffers from a diminished mental capacity, however, maintaining the ordinary client-lawyer relationship may not be possible in all respects. The normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters. In short, a lawyer should, to the extent possible, allow the client with diminished capacity to make decisions and manage his or her affairs as any other client would. Rule 1.14: what is "normal"? Rule 1.14 of the Illinois Rules of Professional Conduct addresses a lawyer's professional obligations when dealing with a client with diminished capacity, providing as follows: "When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." Shortly before the scheduled closing, Senior suffered a stroke and is unable to communicate with Lawyer or attend the closing. Lawyer has also represented Sam Senior for many years, and has been engaged to represent him in the sale of a residence to obtain the funds necessary to move into an assisted living facility - a move that Lawyer and Senior agree is in his best interest in light of his failing health and increasing memory problems. However, Client instructs Lawyer to pay the disputed bill, despite Lawyers' advice to the contrary and the disastrous impact on Client's financial well being, because Client has "always paid" her bills in the past. ![]() Client has a complete defense to the action based on the creditor's fraudulent conduct. Lauren Lawyer represents Carla Client, who is of limited means and a defendant in a contract dispute. Maintaining a "normal" relationship with a diminished-capacity client It focuses on three broad ethical concerns: the need to 1) follow a diminished-capacity client's wishes insofar as possible, 2) determine who the client is when family members initiate the representation, and 3) protect the client's information as required by the rules. This article applies this rule, along with Rules 1.6 (confidentiality) and 1.7 (conflict of interest), to true-to-life hypotheticals. Any lawyer interacting with a client or would-be client who is or might be impaired should consult this rule as a starting point. Rule 1.14 of the new Illinois Rules of Professional Conduct governs Illinois attorneys' professional obligations when dealing with a client with diminished mental capacity. The graying of America means that lawyers more often find themselves representing clients who have cognitive impairment - often hidden - associated with advanced age. Can you allow her to make a decision you advise against? Must you? This article explores this and other issues, like conflict of interest and confidentiality, that arise in serving elderly and other estate-planning clients. You fear your elderly client suffers from diminished capacity.
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