April 19, 2017 – Family lawyers are seeing increasing numbers of older clients in divorce actions. With the increase in elderly divorce clients comes an inevitable increase in clients who may have some degree of mental impairment or diminished capacity.
According to the American Alzheimer’s Association, as many as 5.1 million Americans, most of them over the age of 65, may have Alzheimer’s disease, or something like it. The prevalence of Alzheimer’s doubles every five years beyond age 65.
An elderly client may present as engaging and pleasant, and it may take time to understand the lack of capacity.
Under the Rules of Professional Conduct governing Wisconsin lawyers, a lawyer is to maintain “as far as reasonably possible” a “normal client-lawyer relationship” with a client who may have diminished capacity. The rule, SCR 20:1.14 reads as follows:
SCR 20:1.14 Client with diminished capacity
(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 relating to the representation of a client with diminished capacity is protected by SCR 20:1.6. When taking protective action pursuant to par. (b), the lawyer is impliedly authorized under SCR 20:1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
SCR 20:1.14 creates a progression – with the first step being that the lawyer must, as “far as reasonably possible,” deal with the client normally. Under SCR 20:1.14(b), if the lawyer cannot deal with the client normally, and if the client is at risk, the lawyer may take “reasonably protective action” and even seek the appointment of a guardian ad litem, conservator, or guardian. SCR 20:1.14(c) creates an exception to the rules of confidentiality to allow the lawyer to reveal details of the representation to protect the client. The exception is similar to the 20:1.6(b) and (c) exceptions, which allow lawyers to reveal information relating to the representation of a client to prevent criminal acts, fraud, or bodily injury, and the authority to reveal information is “implied” from SCR 1.6(a). Fortunately, a lawyer can appropriately secure help for the client when within the rule.
Is a Lawyer Competent to Assess Capacity?
It goes without saying that a competent lawyer must deal with a client whose competency is questionable very carefully. Is a competency evaluation within most lawyers’ competence? The ABA and the American Psychological Association (APA) think so. Together, they put forth a handbook to assist lawyers in making capacity assessments.
Diane Diel (Wisconsin 1976) of Diane S. Diel S.C. practices family law in Milwaukee. She is a past president of the State Bar of Wisconsin, past chair of the Wisconsin Collaborative Family Law Council, and past president of the International Academy of Collaborative Professionals.
However, the ABA and the APA only address whether a client has testamentary, donative, or contractual capacity. An assessment of whether a client can testify that the marriage is irretrievably broken or effectively deal with the many interrelated issues that arise in the divorce process is beyond the reach of the assessment tool. The handbook is 72 pages long. It is not an easy read, and is not on topic for a family lawyer.
Is There a Better Way?
Perhaps the better way to assess capacity is to seek assistance from a medical or psychological professional. ABA Comment 6 to 20:1.14 advises that “In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.” Most likely the potential client has a physician who he or she sees regularly. The client can sign a release authorizing the lawyer to speak with the clinician. If the client cannot give informed consent to your request for a waiver allowing you to reach out to the clinician (and for the clinician to respond to you), you may need to consider the guardian ad litem or guardianship.
Here is another wrinkle: What do you do if the potential divorce client is already under guardianship or the client’s trustee or agent under a power of attorney has already begun acting on behalf of the client? The questions become more complex. The client might present to you alone, unsupported by the guardian or agent, or the guardian or agent may be the contact.
The Issues are Complex
The most challenging issues arise when a person who seems quite capable presents to the lawyer, unaccompanied by the guardian or agent. Under SCR 20:1.14, the lawyer’s duty is to maintain, as far as reasonably possible, a normal attorney-client relationship. Clearly, this is treacherous ground when the client has been found to be incompetent. Is the court determination of incompetence binding on the lawyer? Is the lawyer violating a court order even considering taking steps for the prospective client?
As a first consideration, a person who has been declared incompetent may have the legal authority to engage a lawyer to file for divorce. The lawyer must review the letters of guardianship. Whether the client can initiate a petition for divorce will be answered in the order granting the guardianship and enumerating the duties of the guardian (State Form GN-3170).
Under Wisconsin law, the appointing court has the authority to authorize a guardian to exercise the power to “make decisions regarding initiating a petition for the termination of marriage.”1 However, the court also has the authority to limit the powers of the guardian of the person if the decision is one “about which the individual is able effectively to receive and evaluate information and communicate decisions.”2 The lawyer should also review the Guardian’s Letters (State Form GN-3200) to make sure the guardian’s authority is consistent with the court order. If the guardian is the spouse of the ward, clearly the guardianship must be modified before a petition for divorce may be filed.
The law allows a guardianship to be reviewed, modified, or terminated.3 Under this section, either the ward or any “person acting on the ward’s behalf” may petition for a review of incompetency or a modification of the guardianship, including a request to have “specific rights restored.”4 A ward who can petition for the review of incompetency by “a person acting on the ward’s behalf” clearly must have the right to engage that agent.
“Dealing with Capacity Issues in a Divorce” by Julie A. Short and Megann S. Hendrix, Wisconsin Journal of Family Law, June 2015, Vol. 34, No. 2 [available to State Bar of Wisconsin Family Law Section members]
ABA Commission on Law & Aging and American Psychological Association, Assessment of Older Adults with Diminished Capacity: a Handbook for Lawyers (2005)
“More to Come: Dementia and Estate Planning,” by Randall L. Nash, Wisconsin Lawyer magazine, September 2016
Advising Older Clients, State Bar of Wisconsin PINNACLE®
Guardianship and Protective Placement for the Elderly in Wisconsin, State Bar of Wisconsin PINNACLE®
An appropriate first step in creating a lawyer-client relationship with a person previously found incompetent is to secure an opinion of a medical or mental health professional or another appropriate clinician. If the professional opinion supports competency, the opinion may also be used as required support for the petition to modify the guardianship.
Representing the elderly or persons with health-related limitations of mental capacity can be legally complicated and challenging. It is a field particularly appropriate to collaboration with professionals specializing in evaluating mental capacity.
1 Wis. Stat. § 54.25(2)(d)2.k
2 Wis. Stat. §. 54.25(2)(d)1
3 Wis. Stat. §. 54.64(2)
4 Stats. Sec. 54.64(2) a