Representing clients who may be experiencing a change in capacity presents lawyers with serious challenges and ethical considerations. What can and should a lawyer do when a client’s changing capacity seems to require attention? Legal experts explain that most states have adopted a conduct rule to offer guidance in these difficult circumstances.
What represents best practice for lawyers when they believe a client is experiencing capacity challenges? A version of the “Model Rule of Professional Conduct 1.14” exists in some form in just about every state, and can serve as a guide for ethical practice. As Joanna Storey and Jess West of Hinshaw & Culbertson explain: “If the lawyer reasonably believes that their client has diminished capacity, Rule 1.14 permits a lawyer to take reasonably necessary protective action. This includes consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seek the appointment of a guardian ad litem, conservator or guardian, if the lawyer reasonably believes that the client is at risk of substantial physical, financial, or other harm.”
It is of course important to remember that even when diminished capacity may be impacting clients, a range of options exist, depending on the circumstances. Experts at Hinshaw & Culbertson offer these suggestions:
While one client may only need to run decisions by a trusted family member, others may need an appointed guardian ad litem or conservator.When evaluating whether a client has diminished capacity, weigh factors such as the client’s ability to articulate their reasoning, ability to appreciate the consequences, and whether the decision is in line with previous goals. In applicable circumstances, reach out to an appropriate diagnostician.When seeking third-party help for the client, gauge whether it is likely that the person or entity consulted will act with the client’s best interests in mind. A medical doctor or psychologist may be a more suitable option than the client’s cash-strapped fifth cousin twice removed.
When deemed necessary, a court-appointed conservator or guardian can be a relative, friend, professional, or, in some cases, an institution. Conservators and guardians are fiduciaries—they are obligated to always make decisions in the ward’s best interest. Because of this, courts typically require a bond, referred to as a conservator bond, or guardianship bond. Conservator and guardian bonds are a type of fiduciary bond, essentially serving as a guarantee that the appointed conservator or guardian will act in the best interest of the ward, following all applicable laws. At Colonial Surety it’s easy to obtain a conservator or guardianship bond, anytime, from anywhere: get a quote online; fill out the information requested; and, enter a payment method. Bonds are instantly available to print or e-file, from a law office or court. Learn more and obtain a Conservator Bond Here and a Guardianship Bond Here.
As Charles Hunsinger of Burns & Levinson points out, it is inherently difficult for relatives to help safeguard the finances of a loved one. How they spend their money or arrange their estate plans is after all their own business. However, no family wants to know that a loved one has been misled or made irrevocable decisions that put long term financial well-being in jeopardy. If the risk of harm warrants strong intervention, a conservatorship or guardianship might be called for. Depending on the circumstances families that can seek counsel on the use of other legal tools, like powers of attorney and trusts may avoid the intensive, court-involved interventions necessary for guardianships and conservatorships. Legal advisors point out that once courts are involved in such efforts, the protected person is formally losing control, and this may of course lead to unforeseen decisions and deepening family conflicts.
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