Assessing a client’s capacity
Before a client an sign legal documents, he or she must have the requisite legal capacity. The medical and legal communities tend to define capacity differently. However, most agree that it involves the ability to understand and process information so that responsible decisions can be made and communicated.
For cases in which the client’s capacity appears to be marginal, the professional should adopt a screening process to assess capacity and maintain supportive documentation in the file to defend the decision.
When an individual lacks capacity, and family members, usually children, meet with an attorney to seek advice, it is critical to determine who the client is, who is to benefit, and who has the authority to engage professional services. The advice of an experienced elder law attorney can help to clarify these ethical problems and design a plan to minimize court intervention and maximize asset protection.