Ethical Considerations in Working with Aging Clients

In the March 2017 issue of Bench & Bar, readers learned from Courtney Sebo’s article “Try to Remember: Estate Planning for Clients with Dementia” about how a client’s diminished capacity can confound estate planning. In addition to complicating the underlying legal services, a client’s diminished capacity can also create ethical challenges for the client’s lawyer. As people live longer and the nation’s population increasingly ages, more attorneys will encounter clients with dementia and will need to be aware of some of the ethical considerations associated with representing those clients. Discussed below are some statistics about the aging population and the relationship between age and diminished capacity. Next we discuss the lawyer’s task of assessing a client’s capacity. And we end with a discussion of a hypothetical representation that illuminates some of the ethical issues an attorney might face when representing a client with diminished capacity.