What to Consider When Your Client May Have a Diminished Capacity

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When OAMIC receives a claim involving an estate, whether that is a trust document or a will, the issue often is was the client competent at the time the estate document was executed? The lawyer should be careful to fulfill continuing commitments to the client both to represent their interest and, in some situations, to seek additional help for the client.

Oklahoma Rules of Professional Conduct, 5 O.S. 2021, Ch. 1, App. 3-A, Rule 1.14 provides the following:

(a) 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.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relation to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interest.

Comment 1 to Rule 1.14 makes the important note that a normal attorney-client relationship is based on the assumption the client is capable of making decisions about important matters. Once the lawyer sees or is advised there may be an issue with competency, the lawyer needs to document all actions taken to verify competency and why the attorney was satisfied the client was competent to execute the estate documents. It is best to resolve questions about capacity prior to performing any work for the person. However, if at any time during the representation, the client does not seem competent or another party indicates they have concerns about the client’s competency, the lawyer should again take actions to verify competency.

The Oklahoma Supreme Court has provided guidance on what is required for a person to have capacity to execute estate documents. In In re Estate of Holcomb, 2002 OK 90, ¶ 9, 63 P.3d 9, 13, the court held “[t]testamentary capacity exists when a person possesses, in a general way, the ability to appreciate the character and extent of the devised property, understands the nature of the relationship between himself and the natural objects of his bounty, and apprehends the nature and effect of the testamentary act.” The court found it is appropriate to consider the testator’s mental capacity, conduct, appearance and conversations before and after the execution of the estate documents to determine the testator’s mental condition.

Comment 6 to Rule 1.14 provides a lawyer should consider and balance factors should as:

  • The client’s ability to articulate reasoning leading to a decision;
  • Variability of state of mind and ability to appreciate consequences of a decision;
  • The substantive fairness of a decision; and
  • The consistency of a decision with the known long-term commitments and values of the client.

Additionally, Comment 6 to Rule 1.14 provides an attorney may seek guidance from an appropriate diagnostician in assessing client competence.

The four factors specified in Comment 6 require the lawyer to observe the client. Discussion with the client’s family may provide additional insight into the client’s situation, however care should be used not to reveal any information about the client’s confidential discussions with the lawyer. Seeking the client’s permission to speak to the client’s family specifically about medical conditions or behavior may be a way to gain valuable insight into the client’s testamentary capacity.

Seeking a physician’s advice will many times be a final step in the process of evaluating client competence if the observations of the client cause the lawyer to challenge the client’s competence to make decisions. Again, care should be used in discussing the client with the physician, and client permission for any such discussion would be required by HIPAA. This permission should be in writing and signed by the client.

It should be kept in mind that failure to reasonably assess client competence can result in malpractice claims. Those claims usually embody a situation where a party asserts the decedent was not competent when the client executed the estate documents. Conversely, a malpractice claim could be brought if the lawyer elects to seek a guardianship when it is not justified. Evaluating client competence and taking appropriate action is difficult. It is imperative any decision about client competence proceed in a methodical manner, so the reasonableness of the lawyer’s action or lack of action is clear.


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