Posts Tagged: senior clients

How to Approach Questions of a Client’s Mental Capacity in Estate Planning

Authors: Erin K. Higgins and Conor Slattery of Conn Kavanaugh

Clients of all ages may at one point or another become mentally incapacitated and unable to make important legal decisions. Questions of mental capacity arise most often with elderly clients, which leaves estate planning attorneys making mental capacity determinations more frequently than their colleagues practicing in other legal fields.

The basic presumption is that a person is legally competent to make decisions and execute legal documents.  Determining whether a client has the requisite capacity to make decisions involves assessing whether the client is able to effectively communicate and understand his or her decisions, and the consequences associated with these decisions.  The ABA Commission on Law and Aging has issued a handbook in collaboration with the American Psychological Association in order to aid attorneys in assessing whether or not their elderly clients are of a diminished capacity.  Some common warning signs of diminished capacity that estate planning attorneys should look out for when meeting with their clients are:

  • Repetitive phone calls or conversations where a client does not remember the previous conversations;
  • Reliance on a care-giver;
  • Completely forgetting a recent event; and
  • The client’s failure to recall his or her assets or previous decisions.

Once the client’s mental capacity comes into question, the estate planning attorney should attempt to review the client’s assets, personal information, and other basic information to see if the client is able to effectively communicate and recall such information. It may be prudent to ask another attorney to attend a meeting with a client as a witness to events and to assist in determining the client’s mental capacity. An attorney should remember that such a conversation may not only be awkward and difficult for himself or herself, but may be equally (if not more) embarrassing or intimidating for the client. In order to put the client at ease, the attorney should employ a conversational approach, rather than running through a checklist of questions akin to an interrogation, when evaluating a client’s capacity. For example, the attorney may begin the conversation by inquiring as to whether the client’s family is still planning a vacation, whether a grandchild is still playing a particular sport, how the client’s hobby is going, or simply discuss current events with the client as the attorney would if catching up with a friend over coffee.

If you reasonably believe that your client’s capacity is diminished, you may need to take action to protect the client’s interests and assets pursuant to Rule of Professional Conduct 1.14. Confidential client information is protected under Rule of Professional Conduct 1.6, and attorneys for the most part cannot disseminate such confidential client information without the client’s consent. However, an exception exists to Rule 1.6 when representing a client with a diminished capacity. An attorney is impliedly authorized to reveal confidential information when taking protective action on behalf of a client with diminished capacity, but only to the extent reasonably necessary to protect the client’s interests. See Rule 1.14(c). The estate planning attorney must take care to determine exactly what confidential client information, if any, must be disclosed to protect the client’s interests and assets, and limit any such disclosure to this identified information only.

Estate planning attorneys who fail to safeguard the assets and interests of their clients with diminished capacity may be subject to disciplinary action. In Matter of Reynolds, 15 Mass. Att’y Disc. R. 497 (1999), an attorney received a public reprimand for altering an elderly client’s estate plan to benefit the client’s live-in caregiver without inquiring about the parties’ relationship, where the attorney knew that this was a fundamental change to the estate plan to the detriment of the client’s family. The attorney in this situation should have conducted a diminished capacity review before making such a fundamental change to the client’s estate plan.

Questioning and determining a client’s mental capacity is never easy, and an estate planning attorney may face the difficult choice of whether he or she is ethically able to execute a client’s request. In these situations, estate planning attorneys may wish to consult with outside counsel on the appropriate course of action.

Pro Bono Opportunities for Trusts & Estates Attorneys

The Boston Bar Association’s Trusts & Estates Section has partnered with the Volunteer Lawyers Project (VLP) and the Legal Advocacy and Resource Center (LARC) to assist low income and senior clients. Both organizations are currently seeking to expand their rosters of T&E attorneys for the following pro bono initiatives:

• LARC is seeking T&E attorneys to provide limited legal advice over the phone to low income clients. Attorneys will participate in up to 3 phone calls lasting up to 30 minutes each on a select afternoon (generally Wednesday). Attorneys may participate as often as weekly, or as their schedule permits. The purpose of the call is to advise the client on his or her trusts and estates legal matter. If the attorney determines that the client requires further legal assistance, the attorney will recommend to VLP that the case be further staffed by a volunteer attorney. LARC prescreens each client for income eligibility and identifies the interested parties so that the attorney may check for conflicts before speaking with the client.

• VLP is seeking T&E attorneys on cases requiring assistance beyond LARC’s single phone call, such as probating an estate so that a client may retain a house, or a car often essential for employment. Other clients may need wills, health care proxies, powers of attorney or other basic estate planning documents.

• VLP is seeking T&E attorneys to participate in its guardianship practice. VLP represents those persons who are seeking guardianship for minors or incapacitated adults. VLP manages a clinic at Suffolk Probate and Family Court every Tuesday morning where such persons are given assistance filling out the necessary papers. In some cases, attorneys are assigned to represent the individuals throughout the process. On occasion, there is a need for an attorney to represent a client in a contested matter. Anyone interested in volunteering at the guardianship clinic should first attend training at VLP. The calendar for trainings can be found at VLP’s website.

To join the roster of attorneys for any of these important initiatives or to request more information, contact Dan Biagiotti at LARC ( or Lynn Girton, Chief Counsel at VLP ( Thank you.