Capacity and the Attorney-Client Relationship: Rules and Resources

Information

This briefing provides specific guidance and tools to handle client capacity questions. It explains what signs to look for in your client, what the standards of diminished capacity are, and how to handle a situation where your client has some impairment.

Practice tools in this briefing include a sample physician’s letter evaluating capacity, a worksheet for evaluating the client’s capacity, a client engagement agreement, and a recent LEO on evaluating ethical conflicts that may arise in representing a client with diminished capacity.

This briefing is derived from the materials prepared for the 22nd Annual Advanced Elder Law Update Seminar, presented in September 2013 by Virginia CLE®. It is available in in a searchable PDF via immediate download. Click here for more information on electronic books.

CONTENT SUMMARY

  1. Introduction
  2. Observations Of Diminished Capacity By Counsel
  3. Standards Of Diminished Capacity
  4. Capacity In The Attorney-Client Relationship
  5. Practical Guidance Where Client Has Some Impairment
  6. Terminating The Attorney-Client Relationship
  7. Conclusion
  8. Resources For Capacity In The Attorney-Client Relationship
    Appx A: Physician’s Capacity Letter
    Appx B: Capacity Worksheet For Lawyers
    Appx C: Engagement Agreement
    Appx D: LEO 1769

Copyright © 2013 Virginia Law Foundation. All rights reserved.

Table of Contents

TABLE OF CONTENTS:

I. INTRODUCTION

II. OBSERVATIONS OF DIMINISHED CAPACITY BY COUNSEL

III. STANDARDS OF DIMINISHED CAPACITY

IV. CAPACITY IN THE ATTORNEY-CLIENT RELATIONSHIP

V. PRACTICAL GUIDANCE WHERE CLIENT HAS SOME IMPAIRMENT

VI. TERMINATING THE ATTORNEY-CLIENT RELATIONSHIP

VII. CONCLUSION

VIII. RESOURCES FOR CAPACITY IN THE ATTORNEY-CLIENT RELATIONSHIP

APPENDIX A: PHYSICIAN’S CAPACITY LETTER

APPENDIX B: CAPACITY WORKSHEET FOR LAWYERS

APPENDIX C: ENGAGEMENT AGREEMENT

APPENDIX D: LEO 1769

Authors

Kevin B. Rack, J.D., LL.M., RACK & OLANSEN, P.C./Virginia Beach

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