Traveling in a new city or just need to find an unfamiliar location in your town? Accurate directions are just a click away on your car dashboard or map app on your phone. Today, it is almost comical to think about printing out and reading Mapquest directions while you are driving or (gasp!) consulting a map to find your way.

For Trusts and Estates lawyers, GPS guidance would certainly be helpful for direction when assisting clients with decision-making limitations.[1] Thankfully, ABA Model Rule 1.14 offers a roadmap for what can be a difficult aspect of your practice as you help clients with decision-making limitations and their families develop and administer estate plans.

As with many of the ABA Model Rules, Rule 1.14 is relatively brief, with its comments fleshing out the rule and providing real-world applications. Generally, the Rule instructs lawyers to maintain an ordinary attorney-client relationship with a client with decision-making limitations, including when such limitations impact their ability to provide direction to the lawyer or make reasoned, informed choices. The Rule further states that when a lawyer reasonably believes the client:

1. has decision-making limitations,
2. is at risk of substantial physical, financial or other harm unless action is taken, and
3. cannot adequately act in the client’s own interest to address the risk,

the lawyer may take reasonably necessary protective action to address the risk.

The ABA recognizes that decision-making limitations can be situational in nature and can vary in degree and over time. Further, a client may have decision-making limitations with regard to certain issues and not others. Comment 2 acknowledges that some adults with substantial decision-making limitations, including those due to intellectual, developmental or cognitive disabilities, mental health conditions or substance abuse disorder, can make legal decisions.

While this very well may be true, seasoned Trusts and Estates practitioners know that working with a client with decision-making limitations can be particularly complicated, especially when the client wants a family member or another advocate to meet with you. Or sometimes the client may have a guardian, conservator, or power of attorney authorized to make decisions on their behalf. These circumstances require thoughtful pre-planning to ensure you represent the interests of the client and advocate for their goals. Fortunately, the Comments of Rule 1.14 provide useful instructions for how the lawyer should navigate these various scenarios. For example, the lawyer should always seek the client’s informed consent concerning the presence of a family member in their meetings pursuant to Rule 1.6(a). Comment 5 directs counsel to document that person’s role to help avoid a waiver of the attorney-client privilege and also cautions that the lawyer should afford the client the opportunity to communicate privately without the presence or influence of others whenever possible.

If you find yourself in a position of needing to evaluate the extent of the client’s decision-making limitations, Comment 13 lists the following factors you should consider and balance, including:

1. the client’s ability to articulate reasoning leading to a decision;
2. variability of state of mind and ability to understand consequences of a decision;
3. appreciation of the substantive fairness of a decision;
4. the consistency of a decision with the known long-term commitments and values of the client; and,
5. whether supports or accommodations could alleviate factors contributing to decision-making limitations.

Armed with your assessment based on these factors, you will be better equipped to take protective measures to guard against physical, financial, or other harm the client may be exposed to under the circumstances.

Remember – failure to carefully navigate the representation of a client with decision-making limitations can be the fastest route to a malpractice claim. So, while Rule 1.14 is helpful, keep in mind that a client’s decision-making limitations do not diminish your obligations under the other Rules of Professional Conduct, such as your duties of communication and confidentiality.

Whether you have a good sense of direction or not, you probably still use a navigation tool to timely arrive at your destination. Avoid rerouting your strategy when working with a client with decision-making limitations by first reviewing Rule 1.14, and your state’s version of the Rule, for the guidance you need.

practice would of

If you didn't practice in Trusts and Estates, what area of practice would you pursue?

• Criminal law
• Bankruptcy
• Civil litigation
• Family law
• I would pick a different career!

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[1] The ABA recently adopted Resolution 100, supplanting all earlier versions of the Rule, and specifically changing the terminology from “diminished capacity” to “decision-making limitations.”