A corollary to planning for higher income in retirement is planning for the time when one physically or mentally may begin to lose capability in managing one’s own care. If a person is lucky and has a long life, mental acuity begins to diminish. People become less able to distinguish between the claims of hucksters and con men and those of legitimate creditors. In the case of many with fading capacity, the answer to the question of competency to manage one’s affairs isn’t always black and white.
Fading, marginal or diminished capacity is increasingly common as Americans are living longer, but not necessarily free of disability. This raises issues in representing a client when we see changes occurring over time, or we meet a new client for the first time and notice patterns of behavior that raise questions.
Some clients handle fading capacity gracefully and with minimal impact to their estate plans or other legal matters. For others, the results can be difficult or even catastrophic as they combat family and friends trying to help, or fall prey to those who see an easy source of money. An attorney’s role in this area is often not clear, and neither ethics rules nor case law are fully satisfactory in clarifying what steps, if any, are appropriate to the individual circumstances we confront.
Medical and Legal Perspectives Can Differ Greatly
The American Bar Association’s Commission on Law and Aging has worked with the American Psychological Association to create two handbooks. The first, a handbook for attorneys dealing with older clients, was published in 2005, reprinted in 2007 and is entitled, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers.
The second, published in 2008 by the ABA Commission on Law and Aging and the American Psychological Association, is entitled, Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists. Both contain observations of particular value to attorneys whose practice tends to focus on older clients, but the Handbook for Psychologists may be especially interesting since it covers this field from a perspective not often seen by practicing attorneys: the medical perspective, including descriptions of common medical problems that affect determinations of capacity, and that profession’s struggle to fit medical practice into legal constructs and categories.