When the attorney is aware of the client’s expressed wishes, any protective action should be consistent with those expressed wishes. However, when a client has diminished capacity and the attorney does not know the client’s wishes, the attorney should act in accordance with the client’s values.
When the attorney is representing a client with diminished capacity and is unable to determine the client’s particular wishes and values, the attorney must advocate for the client’s best interests. (See UPC Substituted Judgment/Best Interest Standard for Guardian Decisions: A Proposal for Reform).
In determining what is in the client’s best interests, the attorney should consider the client’s rights, remedies, and economic interests and the extent to which the attorney can preserve the client’s self-determination while still protecting the client.
Attorneys should be aware of the potential conflict between the client’s best interests and the attorney’s duty to advocate for the client’s wishes (e.g., when the client wishes to age in place and it is in the client’s best interests to be placed in long-term care). This conflict often occurs when the client has diminished capacity and needs protection, thus requiring the attorney to choose between advocating for the client’s wishes or acting against those wishes in order to protect the client. Determining the appropriate protective action for the client is very specific and requires the balancing of a number of factors and the use of sound legal judgment. Attorneys may consider including as part of the engagement process an acknowledgment or consent provision allowing the attorney to take protective action under specified circumstances allowed or required by state law.
The attorney should consider several factors, including the type of representation sought by the client, the forum in which the attorney’s services are to be provided, and the involvement of other parties. Ultimately, the attorney should balance the client’s need for decision-making assistance with the client’s other interests. These other interests include the client’s autonomy, safety, independence, financial well-being, health, and personal liberty. The decision should not be merely what the attorney thinks is best or would do himself or herself. There is no bright line rule, and as Model Rule 1.14: Client With Diminished Capacity acknowledges, the “lawyer’s position in such cases is an unavoidably difficult one.”
The client’s family, social, and community networks may contribute information about alternatives to protective action. Having support networks that are geographically close to the client may also provide a level of protection for the client and result in a least restrictive intervention.
When taking protective action, the attorney should do no more than necessary to protect the client. Any protective action should be the least restrictive alternative, tailored to the degree of the client’s incapacity and, if possible, reflect the wishes and values of the client as well as the client’s best interests. A number of protective actions may be more effective, less restrictive, and less intrusive than court proceedings or adult protective services. Protective actions may include a cooling-off period, family involvement, and the creation and use of planning documents. (See Model Rule 1.14: Client With Diminished Capacity, Comment 5.)