What happens when our clients become incapacitated? We worry a lot about the right message for family members — and our clients themselves. We’ve adopted some basic rules and approaches.
What’s the problem?
When we prepare estate planning documents for a client, they will typically have named agents in their powers of attorney. They may also have named a successor trustee. They probably also named a person to act as personal representative on their estate — but that last one fits in an entirely different category, as we will explain in a moment.
We might even have represented other family members. Some of our best clients are the parents, children, or siblings of existing clients. So it’s natural for family members to turn to us for legal advice about how to implement the planning we prepared.
Most often, though, the loss (or diminution) of capacity is gradual, not sudden. A client may become incapacitated by degrees, and may have strong feelings about their ability to make their own decisions. They may even become suspicious about well-meaning family members, or rebel against what they see as unwarranted steps by the very people they named as their agents or trustees.
Our role as a client becomes incapacitated
We think the most important principle is that our client — the person who signed those estate planning documents — deserves unconflicted legal representation. If you think about it, that’s what you would want, too. If you were slipping, but felt like your children were rushing in to act too quickly, you would want to feel like your lawyer was, well, your lawyer. We want the same thing.
So when our clients become incapacitated, or their family members think their capacity has diminished, we will usually suggest family seek other legal representation. It’s not that we want to make the process more expensive, or that we don’t care about our original client. It’s precisely because we do care that we are protective of our client/lawyer relationship.
So if you know we prepared your parent’s estate planning documents, and you call to tell us that you think it’s time for you to act, don’t be put off by our gentle suggestion that you need separate legal advice. We’ll cheerfully suggest one or more names of potential attorneys in the community, and we’ll probably be able to communicate with your new attorney without reservations. We might even have gotten permission from your parent to share documents and information with you, and if we have we’ll ordinarily give you that information. But that’s different from giving you legal advice — including about how to step in and act.
What if the incapacity is inarguable?
We’re lawyers, so we are naturally inclined to the view that almost anything is arguable. But more to the point: we want our original client to feel like they have someone on their side even if their incapacity is clear. And we know that it’s not always equally clear to everyone.
Besides, even clients who have become incapacitated can express their wishes on at least some subjects. They might want to negotiate for their favored living arrangement. Or change who they want to act for them. Or impose limits on the authority. We want to be able to counsel them. And we can’t do that if we have switched to representing you, instead.
These considerations can become more complicated when we’ve represented a married couple. There’s already a built-in potential conflict — which is easy to overlook until the partners disagree about how to proceed. And it may be a problem for us to represent one spouse seeking to overcome the other spouse’s objections to actions taken under powers of attorney or trust documents. You have to be prepared for us to have earnest discussions about the potential conflicts.
Does the conflict problem every go away?
Yes, it can — usually by the death of our client (or one of our clients, in a married couple’s case). We no longer have to protect the current interests of our former client — though we do still have to protect their confidences and secrets. In most cases, though, we have no conflict in representing our clients’ named fiduciaries after the client’s death.
That’s why the issue is different for wills than for powers of attorney (or trusts). By definition, a will has no meaning or effect until the death of the signer. So we almost never have conflicts in pursuing probate. Nor, for that matter, do we have any problem giving legal advice to our client’s trustee(s) after the trust has become irrevocable on death of our client.
What about when our clients name us as trustee or agent?
Sometimes (though not often) clients name us to take over their finances or even their personal and health decisions when the client becomes incapacitated. As you can see from the discussion above, that puts us in a potential conflict situation as soon as we learn of the client’s diminished capacity. We have to carefully navigate our growing involvement in managing a former client’s affairs. And we may need to make a clear transition from lawyer/adviser to fiduciary. That sometimes even includes locating legal counsel for our (former) client to assure that their voice can be heard.
We are happy to discuss all of this with you while preparing your estate planning documents. But the problems attendant on our clients losing capacity can be particularly challenging to navigate. We want a good result, and the maximum happiness for our clients. That may not always be consistent with us giving legal advice to family members.
This all sounds so lawyer-like
Indeed. It is. It largely comes from the ethical rules governing lawyers’ behavior.
The American Bar Association has long promulgated model rules of ethical behavior for lawyers. The State Bar of Arizona has largely adopted those rules for Arizona lawyers. You can, if you have a mind to, read the Arizona version of the model rules. If you do, you might pay particular attention to Rules 1.7, 1.8 and 1.18. Those three rules govern the potential conflict of interest between a lawyer and her current, former and potential clients (respectively).
Also important, and a rule that we re-review on a regular basis: Rule 1.14, captioned “Client with diminished capacity.” In a nutshell, that Rule mandates that, even as our clients become incapacitated, we should strive to maintain a normal client-lawyer relationship. Or at least as near to that as is possible.
We take these rules seriously, as we must. But we also think they make for good policy, and that they help protect our clients’ autonomy and self-determination. Even if they create some roadblocks as we move through the change in representation of a client who becomes incapacitated.
It does sound lawyer-like. To help make it more understandable (and less off-putting, we hope) we have devoted an episode of our weekly podcast to the subject. You can read that posting here.
