“What is the Attorney’s Role in the Assessment of Mental Capacity?”
by Francis Burton Doyle, Esq., WealthPLAN
It is not the role of an attorney to be an expert in capacity assessment of their client. However, an attorney can be involved in carrying out a “legal” assessment of their client’s capacity, which often involves:
- Making an initial, preliminary assessment of capacity—looking for warning signs or
“red flags” using basic questioning and observation of the client.
- If doubts arise, seeking a clinical psychiatric consultation or formal evaluation of the
client’s capacity by a clinician with expertise in cognitive capacity assessment.
- When a person has an impairment in their cognitive capacity, they may be vulnerable to
exploitation by others and may not be able to protect their own legal interests.
The different legal tests for capacity means that a client may have the capacity to make some decisions, such as deciding whether to make small purchases like groceries but may lack the ability/capacity to enter into a more complicated financial arrangement.
Remember a finding of incapacity in one area does not automatically mean that capacity is lacking in another area. For example, the Supreme Court has found that a person who has been found incapable of managing their financial affairs may still be capable of making a will.
Attorneys and other wealth planning professionals have an ethical duty to the court, and their clients to ensure that the interests of their clients are promoted and protected at all times. This may include ensuring that a client has the legal capacity before either taking instructions or assisting them to make a legal decision will affect their interests.
We are exploring this complicated topic in depth during our upcoming live webinar entitled,
“How to Navigate the Slippery Slopes of ?Mental Capacity and Undue Influence”