Clients With Diminished
Mental Capacity
Prof. Barry Kozak
Director of the Elder Law Programs, The John Marshall Law
School
bkozak@jmls.edu
Joseph W. Pieper, Esq.
Law Offices of Joseph W. Pieper
joseph@pieperlawoffice.com
Chicago Bar Association Elder Law Committee program
Chicago, Illinois| November 24, 2014
Disclaimer
We are providing general legal education and
information
We are not providing any legal advice
There is absolutely no attorney-client
relationship between any of us, even if we
directly answer one of your questions
Please find your own attorney and establish an
attorney-client relationship with him or her
Today’s Agenda
Kozak
“Normal” Client-Lawyer Relationships
Illinois Rule of Professional Conduct 1.14
Legal Definitions of Mental Capacity
Pieper
How Attorneys Can Assess Mental Capacity
Best Practices and “War Stories”
Kozak and Pieper - Your Questions
“Normal”
Client-Lawyer Relationships
Look to the Illinois Rules of Professional Conduct of 2010
Rule 1.0 – terminology
• (e) “Informed consent” (see comments [6] and [7])
• (f) “Knowingly,” “known,” or “knows”
• (h) “Reasonable” or “reasonably” when used in
relation to conduct by a lawyer denotes the conduct of
a reasonably prudent and competent lawyer.
“Normal”
Client-Lawyer Relationships
Look to the Illinois Rules of Professional Conduct of 2010
Rule 1.0 – terminology
• (i) “Reasonable belief” or “reasonably believes” when
used in reference to a lawyer denotes that the lawyer
believes the matter in question and that the
circumstances are such that the belief is reasonable.
“Normal”
Client-Lawyer Relationships
Look to the Illinois Rules of Professional Conduct of 2010
Rule 1.0 – terminology
• (j) “Reasonably should know” when used in reference
to a lawyer denotes that a lawyer of reasonable
prudence and competence would ascertain the matter
in question.
“Normal”
Client-Lawyer Relationships
Now, query what is a “normal” attorney-client
relationship…
If you are ever in front of a disciplinary board
• Will the way you frame an attorney-client relationship
with one of your clients be compared to the way that
you frame relationships with other similarly situated
clients? --OR-• Will the way you frame an attorney-client relationship
with one of your clients be compared to the way that
similarly situated attorneys frame their attorney-client
“Normal”
Client-Lawyer Relationships
Rule 1.1 – competence
• Reading the comments collectively, Kozak argues that
the attorney must understand case law describing the
level of mental capacity an individual needs in order to
enter into any transaction (and suggests a new
paragraph (d) for IRPC 1.14)
Rule 1.2 – scope of client-lawyer relationship
Rule 1.3 – diligence
“Normal”
Client-Lawyer Relationships
Rule 1.4 – communication
• See especially 1.4(b) - A lawyer shall explain a matter
to the extent reasonably necessary to permit the client
to make informed decisions regarding the
representation.
• See especially comments [5] and [6], “explaining
matters”
• Remember “informed consent” as defined in Rule
1.0(e), without much guidance from IRPC comments
or caselaw
“Normal”
Client-Lawyer Relationships
Rule 1.6 – confidentiality of (client’s) information
• See comment [2] - A fundamental principle in the
client-lawyer relationship is that, in the absence of the
client’s informed consent, the lawyer must not reveal
information relating to the representation.
• See comment [3] - The principle of client-lawyer
confidentiality is given effect by related bodies of law:
the attorney-client privilege, the work product doctrine
and the rule of confidentiality established in
professional ethics.
“Normal”
Client-Lawyer Relationships
Rules 1.7 and 1.8 – conflicts of interest
• There can be instances of undue influence or duress,
especially if someone other than the true client
provides some information or instructions to the lawyer
or pays some or all of the fees
IRPC 1.14 – Representing a
Client With Diminished
Capacity
This rule is part of the collective rules for any clientlawyer relationship, and according to Illinois ARDC, will
be monitored more intensely in the future
Right now, there is very little assistance in assisting
Illinois attorneys in complying with this Rule
IRPC 1.14 – Representing a
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 clientlawyer relationship with the client.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(a) – maintain a normal client-lawyer
relationship
• See comment [1] - The normal client-lawyer
relationship is based on the assumption that the client,
when properly advised and assisted, is capable of
making decisions about important matters.
• See comment [2] - The fact that a client suffers a
disability does not diminish the lawyer’s obligation to
treat the client with attention and respect.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(a) – maintain a normal client-lawyer
relationship
•See comment [3] - The client may wish to have family
members or other persons participate in discussions with
the lawyer. When necessary to assist in the
representation, the presence of such persons generally
does not affect the applicability of the attorney-client
evidentiary privilege. Nevertheless, the lawyer must keep
the client’s interests foremost and, except for protective
action authorized under paragraph (b), must to look to
the client, and not family members, to make decisions on
IRPC 1.14 – Representing a
Client With Diminished
Capacity
(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.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(b) – protective actions
• See comment [5] - 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. …
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(b) – protective actions
• See comment [5] - … 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.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(b) – protective actions
• See comment [6] – In determining the extent of the
client’s diminished capacity, the lawyer should
consider and balance such factors 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. In appropriate circumstances, the lawyer may
seek guidance from an appropriate diagnostician.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(b) – protective actions
• See comment [7] – If a legal representative has not
been appointed, the lawyer should consider whether
appointment of a guardian ad litem, conservator or
guardian is necessary to protect the client’s interests.
…
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(b) – protective actions
• See comment [7] – … In many circumstances,
however, appointment of a legal representative may
be more expensive or traumatic for the client than
circumstances in fact require. … In considering
alternatives, however, the lawyer should be aware of
any law that requires the lawyer to advocate the least
restrictive action on behalf of the client.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
(c) Information relating 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 interests.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(c) – limitation on protective actions
•See comment [8] – Disclosure of the client’s diminished
capacity could adversely affect the client’s interests. For
example, raising the question of diminished capacity
could, in some circumstances, lead to proceedings for
involuntary commitment. Information relating to the
representation is protected by Rule 1.6. Therefore,
unless authorized to do so, the lawyer may not disclose
such information. …
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(c) – limitation on protective actions
• See comment [8] – … When taking protective action
pursuant to paragraph (b), the lawyer is impliedly
authorized to make the necessary disclosures, even
when the client directs the lawyer to the contrary.
Nevertheless, given the risks of disclosure, paragraph
(c) limits what the lawyer may disclose in consulting
with other individuals or entities or seeking the
appointment of a legal representative. …
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Rule 1.14(c) – limitation on protective actions
• See comment [8] – … At the very least, the lawyer
should determine whether it is likely that the person or
entity consulted with will act adversely to the client’s
interests before discussing matters related to the
client. The lawyer’s position in such cases is an
unavoidably difficult one.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Kozak’s thoughts and advice
• Because of Rule 1.2 competency, and all other rules,
there should be a new part (d) added to IRPC 1.14
IRPC 1.14 – Representing a
Client With Diminished
Capacity
New (d) If the lawyer reasonably believes that the client
has some level of diminished capacity, but finds a way to
maintain a normal client-lawyer relationship under (a) and
does not take protective actions on behalf of the client
under (b) and (c), then the lawyer must determine
whether the client has sufficient mental capacity at that
time and at that place under appropriate state law for the
client to enter into the desired transaction, either by
affixing his or her signature to a document prepared or
reviewed by the lawyer or by affirmatively asking the
lawyer to take the appropriate steps needed to legally
bind the client to that transaction or decision.
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Kozak’s thoughts and advice
• Can the lawyer continue to withdraw fees from the
IOLTA trust account once the client has diminished
capacity, and therefore can no longer provide
informed consent, as required by IRPC 1.15?
• Can the lawyer ever truly decline further
representation or terminate current representation if
the client cannot provide informed consent, as
required by IRPC 1.16?
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Kozak’s thoughts and advice
• Can the lawyer transfer representation to another
lawyer (through the sale of a law practice) if the client
can no longer provide informed consent, as required
by IRPC 1.17?
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Kozak’s thoughts and advice
• If the lawyer decides to take protective actions allowed
under IRPC 1.14(b), can the lawyer appoint him- or
herself to be the “protector”? (see conflict of interest
rules at IRPC 1.8, and especially comments [1]
through [4])?
IRPC 1.14 – Representing a
Client With Diminished
Capacity
Kozak’s thoughts and advice
• If the lawyer decides to take protective actions allowed
under IRPC 1.14(b), does the lawyer’s E&O Insurance
cover such voluntary actions?
• If the lawyer decides to take protective actions allowed
under IRPC 1.14(b) for any single client, does that
affect how the ARDC will view “normal” client-lawyer
relationships for any other clients with diminished
mental capacity?
Legal Definition of Mental
Capacity – Criminal Law
Determining mens rea at the time of the commission
of the criminal act
Federal – see Clark v. Arizona, 548 U.S. 735 (2006), the
common law allows a defense if the individual either did
not understand the consequences of his actions, or if
understood, the individual did not have a moral compass
to understand that such consequences from his or her
actions were wrong
Legal Definition of Mental
Capacity – Criminal Law
Determining mens rea at the time of the commission
of the criminal act
Illinois – see People v. Hulitt, 361 Ill. App. 3d 634, 641,
838 N.E.2d 148, 155 (2005) (citing 21 Am.Jur.2d Criminal
Law § 38 (1998)) – to show diminished capacity, there
must be evidence that, at the time of the [criminal act],
the defendant did not appreciate the nature of her
conduct or was incapable of conforming her conduct as a
result of mental disease or defect.
Legal Definition of Mental
Capacity – Criminal Law
During the course of a trial
Federal – see Dusky v. United States, 362 U.S. 402
(1960), upheld in Godinez v. Moran, 509 U.S. 389 (1993)
- it is not enough for the district judge to find that the
defendant (is) oriented to time and place and (has) some
recollection of events, but that the test must be whether
he has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding—and
whether he has a rational as well as factual
understanding of the proceedings against him
Legal Definition of Mental
Capacity – Criminal Law
During the course of a trial
Illinois – see People v. Heral, 62 Ill. 2d 329, 336-37, 342
N.E.2d 34, 38 (1976) (citations omitted) - If the defendant
does understand the nature and object of the charges
against him and can, in co-operation with his counsel,
conduct his defense in a rational and reasonable manner,
then he is mentally competent to stand trial although
upon other subjects his mind may be unsound.’ A
defendant may be competent to plead guilty even though
he or she may have certain mental or emotional
disturbances.
Legal Definition of Mental
Capacity – Criminal Law
Sentencing
Federal – see Atkins v. Virginia, 536 U.S. 304 (2002) - it
would be cruel and unusual punishment to execute an
individual, who based on evidence presented at trial, is
clinically defined as mentally retarded
• The US Sentencing Guidelines (U.S.S.G. § 5K2.13)
allows courts downward departure from existing
sentencing guidelines based on mental capacity of
defendant, unless caused by voluntary use of alcohol
or other intoxicants
Legal Definition of Mental
Capacity – Criminal Law
Sentencing
Illinois – see People v. Urdiales, 225 Ill. 2d 354, 451, 871
N.E.2d 669, 725 (2007), as modified on denial of reh'g
(May 29, 2007) - We have no doubt that the jury
considered defendant's formative experiences—
particularly his mother's temporary withdrawal, his sexual
experience with his sister, and childhood teasing and
bullying—and, correlatively, his mental condition, and
appropriately weighed them against the details of eight
brutal murders and the terrorization of J.A.
Legal Definition of Mental
Capacity – Medical Malpractice
Federal – Cruzan and its progeny pretty much hold that
unless there is an emergency situation, the patient has
the right to decide on whether to receive or refuse
medical treatment, and if deciding to receive treatment,
then has the right to receive substantial material
information from the doctor, including associated risks,
and then an decide on his desired course of treatment,
even if death or further complications are more likely to
ensue. (Cruzan by Cruzan v. Dir., Missouri Dep't of
Health, 497 U.S. 261 (1990)).
Legal Definition of Mental
Capacity – Medical Malpractice
Illinois – not much guidance, but see, e.g., In re Israel,
278 Ill. App. 3d 24, 33, 664 N.E.2d 1032, 1038 (1996) “Because the trial court did not actually determine that the
medications' harm outweighed their benefits or that
respondent had the capacity to make a reasoned
decision, the trial court is not barred from revisiting these
issues.”
Therefore, it is for a trial court to determine mental
capacity of the patient at the time of giving informed
consent, without bright line tests from the Illinois Supreme
Court.
Legal Definition of Mental
Capacity – General
Transactions
Illinois:
In general, “the competency of the mind must be judged
of by the nature of the act to be done, and from a
consideration of all the circumstances of the case.”
Campbell v. Campbell, 130 Ill. 466, 476, 22 N.E. 620,
622 (1889).
Legal Definition of Mental
Capacity – General
Transactions
To enter into a will:
• “if [the testator] had the power of summoning up in his
mind so as to know what his property was, and who
those persons were that then were the objects of his
bounty, then he was competent to make his will.”
Trish v. Newell, 62 Ill. 196, 196 (1871).
• “[there is a] doctrine that a man may not be competent
to make a will of one kind, owing to the nature and
extent of the estate, when he may be competent to
make one less complicated.” Id.
Legal Definition of Mental
Capacity – General
Transactions
To convey property:
• “the mental capacity required to sustain the validity of
a deed is of a higher degree than that required to
enable a testator to make a will.” Greene v. Maxwell,
251 Ill. 335, 340 (1911).
• “To sustain a deed however, he must have the ability
to transact ordinary business.” Id.
Legal Definition of Mental
Capacity – General
Transactions
To enter into a marriage:
• “if the party possesses sufficient mental capacity to
understand the nature, effect, duties, and obligations
of the marriage contract into which he or she is
entering, the marriage contract is binding, as long as
they are otherwise legally competent to enter into the
relation.” Larson v. Larson, 42 Ill. App. 2d 467, 473,
192 N.E.2d 594, 597 (Ill. App. Ct. 1963).
Legal Definition of Mental
Capacity – General
Transactions
However, Illinois has a more current view:
• “although various cases ... examined by the court
indicate the existence of a difference in tests for
competency between one entering into a marriage,
one executing a will, and one conveying real estate by
deed, all of such authorities agree that a person who
has sufficient mental capacity to transact ordinary
business has mental capacity to perform all three of
the aforesaid acts.” Greathouse v. Vosburgh, 19 Ill.
2d 555, 567-68 (1960).
How Attorneys Can Assess
Mental Capacity
Pieper’s thoughts and advice
Best Practices and “War
Stories”
Pieper’s thoughts and advice
Clients With Diminished
Mental Capacity
Prof. Barry Kozak
bkozak@jmls.edu
Joseph W. Pieper, Esq.
joseph@pieperlawoffice.com
Chicago Bar Association Elder Law Committee program
Chicago, Illinois| November 24, 2014