Clients With Diminished Mental Capacity Prof Barry Kozak

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 the

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 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. 3 d 634, 641, 838 N. E. 2 d 148, 155 (2005) (citing 21 Am. Jur. 2 d 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. 2 d 329, 336 -37, 342 N. E. 2 d 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. § 5 K 2. 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. 2 d 354, 451, 871 N. E. 2 d 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. 3 d 24, 33, 664 N. E. 2 d 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. 2 d 467, 473, 192 N. E. 2 d 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. 2 d 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