Working with Clients with Diminished Capacity

Date: Wednesday, October 18, 2017
Time: 3:30pm - 7:00pm
Location: Arizona Inn, 2200 E. Elm Street
Speaker: Mary Radford, Georgia State University, College of Law, Atlanta, GA

Registration and cocktails

3:30 pm – 4:00 pm


4:00 pm – 6:00 pm


6:00 pm – 7:00 pm



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by Friday, Oct. 13th


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The handout for this program can be found below.

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About the speaker

Professor Mary F. Radford is the Marjorie Fine Knowles Professor of Fiduciary Law at the Georgia State University College of Law in Atlanta, Georgia.  She has been a member of the faculty of the College of Law since 1984. Her teaching areas include Wills, Trusts & Estates, Estate Planning, and Elder Law.  Professor Radford is an Academic Fellow of the American College of Trust & Estate Counsel (ACTEC) and, in 2011-12, she served as that organization’s President.  Professor Radford served as the Reporter and principal drafter for the State Bar of Georgia committees that drafted the 1998 Revised Georgia Probate Code, the 2005 Revised Georgia Guardianship and Conservatorship Code, and the 2010 Revised Georgia Trust Code.  Professor Radford is the author of Redfearn: Wills & Administration in Georgia (Thomson Reuters, 2017-18); Trusts & Trustees in Georgia (Thomson Reuters, 2017-18 ed.); and Georgia Guardianship and Conservatorship (Thomson Reuters, 2017-18 ed.), as well as numerous law review articles and other scholarly publications.  She serves as a member of the National Academy of Elder Law Attorneys (NAELA) Professionalism and Ethics Committee that developed the 2d edition (2017) of the NAELA Aspirational Standards for the Practice of Elder Law and Special Needs Law.


About the program

Individuals age 65 or older currently represent about 15% of the U.S. population.  This figure continues to rise, with 10,000 Baby Boomers turning age 65 every day.  Longer lives are unfortunately often accompanied by diminishing mental capacity and increased vulnerability.  Clients and potential clients whose capacity is diminishing present complex ethical challenges to the professionals who are advising them.  Does a planner have an obligation to determine whether a client lacks capacity?   If so, how does the planner do so?  What level of capacity is required for specific transactions, such as executing a will or a trust? May and should the planner pursue protective proceedings if the client lacks capacity and is vulnerable to abuse by third parties?  How do the planner’s duties of confidentiality and loyalty interact with the duty to take protective action?  Using examples from cases that have achieved notoriety in recent years, this presentation will explore the challenges of working with clients who have diminishing capacity.  


A. Introduction to Representation Issues

Case Study #1: Huguette Clark (Eccentricity or Incapacity?)

B. Recognizing Diminishing Capacity: The Medical/Psychological Landscape

1. Introduction to Testing for Diminished Capacity

C. Forensic Evaluation: Functional & Causal Components

1. Possible Causes of Perceived “Incapacity” (Delirium, Mental Illness, Developmental Disorder, Physical Illness or Frailty, Organic Brain Damage, Alcohol & Drug Dependency

2. Dementia & Alzheimer’s Disease

a. Stages of Dementia

b. 10 Warning Signs of Alzheimer’s Disease

D. Legal Capacity

1. Historical Definitions of Legal Capacity

2. Differing Legal Capacities: Testamentary Capacity, Capacity to Make a Trust or Gift, Capacity as it relates to Guardianship & Conservatorship

3. Steps for determining whether client has appropriate capacity

a. Observable signs; using capacity measures; medical examination; consultation with experts; forensic evaluation

E. Enhancing Client Capacity

Steps professionals can take to maximize & enhance client capacity Case Study #2 – Harper Lee (Preserving Client Autonomy)

F. Role of the Lawyer or Other Advisor:

1. ABA Model Rule of Professional Conduct 1.14 (“Clients with Diminished Capacity”)

a. Client Autonomy vs. client protection       

2. Overlap of MRPC 1.14 with other Rules of Professional Conduct

a. MRPC 1.2 (Competence), MRPC 1.4 (Communication), MRPC 1.6 (Confidentiality), MRPC 1.7 (Conflict of Interest)

3. Duty to Assess Client Capacity

a. Client with “borderline” capacity

i. Does the lawyer have a professional duty to assess client capacity?

ii. To whom is this duty owed?

iii. Is the lawyer liable to third parties if the lawyer allows the client to enter into a transaction for which the client does not have the appropriate capacity         

G. Taking Protective Action

Case Study #3 – Brooke Astor (Suspected Elder Abuse)

1. May/must the lawyer or other professional disclose suspected elder abuse to third parties?

2. What types of “protective actions” are available?

3. May a lawyer petition to have a guardian appointed for a client?

Related Document(s):

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