May 15, 2019 – A client with diminished capacity is owed all the duties, loyalty, and confidentiality that a lawyer owes to any client. Does that mean that you can represent someone seeking a guardian appointment to your client?

Question

I represented a client on a variety of matters over the years, and have some current matters pending for the client. The client is now elderly, and their condition has taken a serious turn for the worse. It seems clear that the client is in need of guardianship in order to protect the client both physically and financially.

I’ve been approached by the client’s daughter, who asked me to represent her in seeking to be appointed guardian over the client. Family members all agree that this would be best. I’ve always thought that I could take action to protect clients when they could not protect themselves, but one of my partners thought that I should not represent the daughter in seeking the guardianship.

If I take action to protect my elderly client, is it improper to represent the daughter in seeking to be appointed guardian of the client?

Answer

When a lawyer represents a client with diminished capacity – such as the infirmities of aging – the lawyer’s responsibilities are governed by SCR 20:1.14. Specifically, subsection (b) of that rule states:

(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.

In order to take protective action under this subsection, the lawyer must be able to articulate why the lawyer reasonably believes that the client has diminished capacity and cannot adequately act in their own interest, and is at risk of substantial harm unless action is taken to protect the client against that harm.

The mere fact that a client has diminished capacity does not authorize the lawyer to take protective action outside the bounds of a normal lawyer-client relationship.

The Rule gives some guidance as to what may constitute appropriate “protective action,” but the ABA Comment [5] provides further guidance:

Such measures could include: consulting with family members, using a reconsideration period to permit clarification or improvement of circumstances, using voluntary surrogate decision-making tools such as durable powers of attorney or consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client. In taking any protective action, the lawyer should be guided by such factors as the wishes and values of the client to the extent known, the client's best interests and the goals of intruding into the client's decision-making autonomy to the least extent feasible, maximizing client capacities and respecting the client's family and social connections.

Thus, while the rule states that protective action may include “seeking the appointment of a … guardian,” neither the Rule nor the accompanying comment squarely address the question of whether the lawyer may represent another in seeking to be appointed guardian of the client.

ABA Formal Opinion 96-404, however, directly addresses this question:

Rule 1.14(b) creates a narrow exception to the normal responsibilities of a lawyer to his client, in permitting the lawyer to take action that by its very nature must be regarded as “adverse” to the client. However, Rule 1.14 does not otherwise derogate from the lawyer's responsibilities to his client, and certainly does not abrogate the lawyer-client relationship. In particular, it does not authorize a lawyer to represent a third party in seeking to have a court appoint a guardian for his client. Such a representation would necessarily have to be regarded as “adverse” to the client and prohibited by Rule 1.7(a), even if the lawyer sincerely and reasonably believes that such representation would be in the client's best interests, unless and until the court makes the necessary determination of incompetence. Even if the court's eventual determination of incompetence would moot the argument that the representation was prohibited by Rule 1.7(a), the lawyer cannot proceed on the assumption that the court will make such a determination. In short, if the lawyer decides to file a guardianship petition, it must be on his own authority under Rule 1.14 and not on behalf of a third party, however well-intentioned.

We emphasize, however, that this does not mean the lawyer cannot consider requests of family and other interested persons and be responsive to them, provided the lawyer has made the requisite determination on his own that a guardianship is necessary and is the least restrictive alternative. The lawyer must also have made a good faith determination that the third person with whom he is dealing is also acting in the best interests of the client. In such circumstance, the lawyer may disclose confidential information to the limited extent necessary to assist the third person in filing the petition, and may provide other appropriate assistance short of representation.

(emphasis added)

This useful guidance serves as a reminder that a lawyer’s primary obligation under SCR 20:1.14(a), when representing a client with diminished capacity, is to maintain as far as reasonably possible, a normal lawyer-client relationship. A client with diminished capacity is owed all the duties, such as loyalty and confidentiality, that a lawyer would owe to any client.

SCR 20:1.14(b) creates a limited exception which permits a lawyer to take protective action, but it does not free the lawyer of all obligation to client, nor does it free the lawyer to assume a role of representing the ‘best interests” of the client, such as a guardian ad litem.

While the lawyer has the ability in certain circumstances to recommend a guardianship to a client’s family, the lawyer’s ongoing duty of loyalty to the client under SCR 20:1.7(a) prevents the lawyer from representing a third party in seeking to be appointed as the client’s guardian.