Representing Clients with Diminished Capacity

I have represented an elderly client for several years regarding estate planning issues.  Recently, she seems to be slipping.  She has asked me to make some changes to her estate planning documents that don’t really make sense.  I fear that she is being unduly influenced by one of her adult children.  I know that Rule 1.2 requires me to abide by my client’s directives with respect to the objectives of the representation.  What are my options?

W.R.P.C. Rule 1.14 gives lawyers considerable latitude when confronted with a client with diminished capacity, which is broadly defined as a diminished ability to make adequately considered decisions in connection with a representation, “whether because of minority, mental impairment or for some other reason.”  In such situations, 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, seek the appointment of a guardian ad litem, conservator or guardian.”  When taking such protective action, the lawyer is impliedly authorized under Rule 1.6(a) [the confidentiality rule] to reveal information about the client, “but only to the extent reasonably necessary to protect the client’s interests.”

Mark W. Gifford
Bar Counsel
(307) 432-2106

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