An attorney owes the duties of competence, communication, confidentiality, loyalty and non-discrimination to a client.  These duties require special attention and care by the attorney when representing client with diminished capacity.  Recently the California State Bar issued formal Opinion No. 2021-207 (the “Opinion”) to examine four ethics issues when an attorney represents a client with diminished capacity. 

First, “a lawyer has a duty to maintain, insofar as reasonably possible, a normal attorney-client relationship, as reflected in the rules relating to competence, communication, confidentiality, loyalty and nondiscrimination.”  A lawyer must first apply the presumption that the client has capacity to engage in the legal activity.  Capacity is evaluated on a “decision by decision basis” and the lawyer’s duty of competence may require the lawyer “taking measures to enhance the client’s ability to make and communicate an effective decision.”  Some decisions require more capacity than other decisions.

For example, “the attorney may adjust the interview environment, communicate more slowly, spend more time, and meet the client when he or she is more lucid”.  The attorney may have the client’s trusted family members help the client’s communication and understanding. 

Nonetheless, the client must still have sufficient capacity .  Even with support a lawyer must recognize that, “… the client may be unable to make a legally effective decision, …, or that diminished capacity will result in a decision that does not serve the client’s interest or exposes them to harm that the client cannot understand or prevent.”  

For example, out of loyalty to the client, a lawyer should decline to modify a client’s estate planning when, “Lawyer’s reasonable belief is that Client lacks the capacity to make a decision reflecting Client’s interest and that Client’s preferred course would expose Client to the risk of exploitation.”

Second, a lawyer has an obligation to make judgments or decisions relating to the client’s capacity. “A lawyer may assist a client whose testamentary capacity appears to be borderline, including by taking steps to preserve evidence that would support a finding of capacity.”  With the client’s consent, a lawyer may involve a, “… professional with an understanding of the cognitive and emotional issues involved in determining the client’ capacity and how the attorney-client relationship should be adjusted to reflect them.” 

Third, a lawyer may sometimes have authority to take some protective actions on behalf of a client with diminished capacity.  The Opinion states that, “… absent a final judicial determination of incapacity, a lawyer’s reasonable belief that a client is incapacitated should not by itself terminate the lawyer’s authority to take protective action in the client’s best interest if such action is within the scope of the representation.  Moreover, whether the lawyer has authority to take protective action involves the lawyer’s duty of loyalty, ‘to protect the client in every possible way’.”

However, before an attorney takes protective action, the lawyer must consider his or her duties of confidentiality and loyalty to the client.  Generally speaking, a lawyer needs the client’s informed consent to disclose confidential information.  “If the client lacks the capacity to give such consent, is unavailable, or declines to give such consent, the lawyer may not make such disclosures.” 

For example, “if a lawyer is able to contact Client directly, and if Client, notwithstanding the cognitive deficits …, can give informed consent, Lawyer may not be able to disclose confidential information to concerned relatives or other authorities.”

Fourth, a lawyer may obtain a client’s advanced consent to lawyer’s disclosure of confidential information, “if the client’s future diminished capacity exposes the client to harm that could be prevented by such disclosure.”  Such advanced consent requires a sufficiently comprehensive explanation to the client of the conditions for disclosure, the factual scenario contemplated, and the benefits and the risks involved with disclosure.  Such consent must be revocable at any time.

Representing client with diminished capacity often involve areas of law and fact that are unclear.  An attorney whose “judgments are informed and disinterested … should not be viewed as unethical simply because subsequent events proved them to have been mistaken.”

The foregoing is a brief summary of a twenty page legal opinion and is not legal advice.  Anyone confronting the issues addressed should consult with a qualified attorney. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”