The American Bar Association recently published some very helpful guidance for lawyers in considering client capacity to make legal and other decisions. The most important directive is that the correct question is NOT whether a client has capacity — it is whether a client has capacity TO DO A PARTICULAR THING.
Persons with significant cognitive impairments still have the capacity to make certain decisions in their lives. It is important for a lawyer to determine whether a client has the capacity to make decisions about legal matters. This is increasingly important as we serve more aging baby boomer clients.
The ABA notes that “capacity is defined as the ability to perform a task — or make a decision. State laws set out standards of legal capacity for various tasks — to consent to treatment, make a will or deed, make a gift or contract.” A client may have significant cognitive impairments and still have the capacity to make certain important decisions.
The ABA reports that “recent changes have called the legal term “capacity” into question. The U.N. Convention on the Rights of Persons with Disabilities in Article 12 recognizes that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and that governments must take measures to assist individuals in exercising their capacity. The emerging principle of supported decision-making focuses on providing the needed support to help people make decisions. Finally, the 2017 Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA), approved by the Uniform Law Commission for adoption by state legislatures, do not use the term “capacity” – rather, it guides courts in determining whether there is a “basis” for the appointment of a guardian, taking into account needed supports and supported decision-making.”
But, the ABA notes, client capacity is still the touchstone in many statutes and in much case law. Below are the ABA’s 10 commandments of capacity. Check out the description of each of these “commandments” here: https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-40/issue-1-september-october-2018/10-commandments/
I. Thou shalt presume capacity.
II. Thou shalt talk to the client alone.
III. Thou shalt take steps to maximize client abilities.
IV. Thou shalt not worship anyone standard for capacity.
V. Thou shalt not covet the mini-mental status exam.
VI. Thou shalt not end any query with only the word “capacity.” Yea, the proper query shall be, “Capacity to do What?”
VII. Thou shalt seek the big picture, with all its variability, intermittency, and nuance.
VIII. Thou shalt honor thy client’s own considered or habitual standards of behavior, goals, and values, not those held by you or others.
IX. Thou shalt honor thy client’s confidentiality and autonomy even in the face of incapacity.
X. Thou shalt plan ahead to ensure that one’s wishes are respected.