This Article suggests what an attorney should consider when representing a client suspected by the attorney of having diminished capacity, anticipating diminished capacity, or a client anticipating a response to the legal dilemmas posed by aging. So too, this Article suggests what an attorney should consider when retained by the family members of an allegedly incapacitate person. After providing demographics regarding aging, this Article will specifically address the attorney-client relationship in the context of the Model Rules of the American Bar Association. Next, this Article will integrate the attorney's responsibility regarding the proper execution of a Last Will and Testament, including the issues of capacity and undue influence. Then this Article will discuss the process of determining incompetency of an adult is sufficient for appointment of a guardian or conservator. This Article will provide illustrations from current cases, applicable professional conduct parameters, and commentary from practitioners offering guidelines for working with clients of diminished capacity. Overall, this Article seeks to provide usable practice parameters for attorneys working with an ever-increasing segment of the American population, the elderly.
Raymond C. O'Brien, Attorney Responsibility and Client Incapacity, 30 J. CONTEMP. HEALTH L. & POL’Y 59 (2013).