Lawyers are required to make assessments of their clients’ capacity to make legal decisions, and sign legal documents. This is especially true in a wills and estates practice, which will often include incapacity planning, such as making enduring powers of attorney, and applications to court for guardianship of adults.
In my experience, assessing capacity is one of the most difficult challenges estate-planning lawyers face. Few of us lawyers have any training in medicine, psychiatry or psychology. We may often fail to identify significant cognitive or other disability, or fail to understand the implications of signs of diminished capacity. On the other hand, lawyers can’t delegate the decision about whether or how to proceed with a legal transaction to those who do have clinical training and experience. The criteria for capacity are legal, and few physicians or psychologists have legal training. Furthermore, in the end, it is the lawyer who has to exercise his or her judgment. For example, the lawyer must decide whether to draft and witness the will if the lawyer has questions about the client’s capacity.
I have just finished reading Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, published by the American Bar Association Commission on Law and Aging and the American Psychological Association in 2005. It is a useful resource for Canadian estate-planning lawyers as well as American. The Handbook is available online here.
The Handbook offers practical guidance for lawyers faced with questions about clients’ capacity. The Handbook considers the following questions:
1. What are legal standards of diminished capacity?2. What are clinical models of capacity?3. What signs of diminished capacity should a lawyer be observing?4. What mitigating factors should a lawyer take into account?5. What legal elements should a lawyer consider?6. What factors from ethical rules should lawyer consider?7. How might a lawyer categorize judgments about client capacity?8. Should a lawyer use formal clinical assessment instruments?9. What techniques can lawyers use to enhance client capacity?10. What are the pros and cons of seeking an opinion of a clinician?11. What if the client’s ability to consent to a referral is unclear?12. What are the benefits for the lawyer of a private consultation with a clinician?13. How can a lawyer identify an appropriate clinician to make a capacity assessment?14. What information should a lawyer provide to a clinician in making a referral?15. What information should the lawyer look for in an assessment report?16. How does a clinical capacity evaluation relate to the lawyer’s judgment of capacity?
The appendices include a capacity assessment algorithm for lawyers, two case studies, a guide to psychological and neuropsychological instruments, and an overview of dementia.
The American Bar Association Commission on Law and Aging and the American Psychological Association has also published a companion paper (which I have not read) entitled, Assessment of Older Adults with DiminishedCapacity: A Handbook for Psychologist.