Probate and estate attorneys often represent clients who are incapacitated by advanced age, illness, or injury. There are special considerations that arise in such situations that require both sensitivity, as well as knowledge of the pitfalls, problems, and challenges that can arise. This book examines the legal and ethical issues surrounding the representation of a client with diminished capacity. You will learn about the varying legal standards of capacity to execute various documents; answer questions of drafting in the face of incapacity; special issues with powers of attorney; undue influence - remedies for the lawyer; confidentiality of information – communication with and help from family members; as well as, related ethical issues for lawyers.
Summary of Contents:
The Decline of Anne; Legal and Practical Issues; What Makes the Representation Challenging?; Legal Challenges Can Be Numerous and Unfamiliar; Ethical Issues Can Be Vexing; Practical Challenges Faced by the Attorney Can Be Daunting; Typical Causes of Diminished Capacity that Increase with Age; Dementia; Other Causes of Diminished Capacity; The Signs and Effects of Dementia; As the Population Ages, the Incidents of Dementia Increases; The U.S. Population is Aging; Levels of Mental Capacity Required to Execute Documents and Perform Tasks; Will – Testamentary Capacity; Power of Attorney; Living Will; Trusts; Gifts; Creating Joint Accounts and Conducting Banking Affairs; Contracts; Consent to Representation; Lawyer’s Assessment of Client Capacity; Reasons for an Informal Assessment of the Client’s Mental Capacity; Failure to Assess Capacity May be a Disservice to the Client; Lawyer’s Interviewing Techniques; Possible Signs of Incapacity; Professional Evaluations; Protective Actions; The Lawyer’s Role in Recommending Protective Actions; Powers of Attorney; Creation of Trusts; Legal Actions; Support Resources; The Lawyer’s Role; Preparation of Appropriate Documents; Minimizing the Possibility the Documents Will be Challenged;. Overseeing Execution of Documents; Retention of Superseded Documents; Combating Financial Elder Abuse; The “Perfect Storm”: An Increasingly Aging and Vulnerable Population with Wealth Meets the Needy and Greedy; Durable Power of Attorney Can Be Best Defense; Legal Actions Available to Halt or Remedy Financial Abuse; Criminal Charges | Ethical Issues; Introduction; Background to the Rules of Professional Conduct; Lawyers can get Help with Interpreting the Rules; The Consequences of Violating the Rules; Violating the Rules may Constitute Malpractice; Engagement Agreement; Determining Whether the Prospective or Continuing Client is Able to Agree to the Representation; Determining the Reasonableness of Fees; Communicating with the Client about the Fee Arrangement; Payment of the Fee by Non-Client; Lawyer Referral Fees; Identifying the Client – Conflicts Posed by Family Members; When the Child Intervenes to Help a Parent; Representing Multiple Family Members; Representation of Parent and Child; Responding to Child’s Request that Parent’s Assets be Transferred to Him or Her; Potential Conflicts with Attorney-in-Fact; A lawyer may disregard the instructions of an attorney-in-fact when there is reasonable cause; May a lawyer release the client’s Will to the Attorney-in-Fact?; Conflicts in Guardianship Proceedings; May a lawyer representing an individual who becomes incapacitated, represent a family member as the petitioner seeking an adjudication of incapacity and the appointment of a guardian; How may a lawyer who represents a client for whom a guardian has been appointed act on behalf of the client, individually, when the guardian, represented by separate counsel, appears not to be acting in the client’s
best interest? ; It is sometimes possible for a lawyer to represent a party in a Guardianship hearing when that lawyer will also serve as a witness at the hearing?; Confidentiality; Confidential Nature of Client’s Condition; Attorney May Release Information Necessary to Implement Incremental Protective Actions; Attorney May Warn of Client’s Threats; What should the lawyer do if the client insists that all communications pertaining to the estate planning engagement go through an intermediary?; Ethical obligations of a lawyer who retains a client’s Power of Attorney; A lawyer may release a copy of a deceased client’s estate planning documents, prior to the appointment of a personal representative, in an effort to prevent a Will contest; Obligations When Drafting Documents; Assuring Adequate Communications; Contending with an Intermediary; Assessing Capacity; Beware of Undue Time Pressures; Lawyers’ Options When Incapacity is Apparent; Appropriate Use of Notaries; Miscellaneous Issues; Should a lawyer accept a case involving a contested guardianship?; Prior to a Guardianship proceeding, may a lawyer interview family members with adverse interests not represented by counsel who have knowledge of the condition of the decedent when the will or other document in question was signed?; How should the lawyer respond if the interests of that person are, or have a reasonable possible of being, in conflict with the interests of the lawyer’s client?; May a lawyer pressure a third party to return embezzled funds by threatening to report his or her actions to the local D. A.?.
Number of Pages: 100
