Four Steps to Optimize Capacity

1. Interview the client alone.

Family, friends or caretakers often accompany older or disabled individuals to the lawyer's office. Although these significant others can play an important role in providing essential background information, the ethical starting point in the client-lawyer relationship remains the individual's competent choice to retain the services of the lawyer and to decide the overall objectives of representation. From the beginning, the lawyer needs to be clear on whom the client is and the ethical implications of that relationship in terms of loyalty, confidentiality and decision-making. The initial interview should always include a time when the client and the lawyer meet alone. This time alone not only confirms representation and objectives, but also provides an opportunity, if needed, to assess capacity. This one-on-one meeting request may cause apprehension among family member and even the elderly client, but it is necessary to ensure that personal and environmental factors do not unduly influence the decision-making process.

2. Adjust the interview environment to enhance communication

Optimizing the interview environment serves all clients well. More importantly it will optimize the partially impaired client's decision-making ability. Capacity deserves to be judged under the best circumstances possible. The following are a few basic parameters. Others can be found in Effective Counseling of Older Clients: the Attorney-Client Relationship, American Bar Association, Commission on Legal Problems of the Elderly and Legal Counsel for the Elderly, 1995.

Impaired vision or hearing can result in a lack of response that can be interpreted as a lack of mental capacity. Speaking slowly, conducting the interview in a well-lit area and providing necessary audio or visual amplification will facilitate communication.

Some elderly clients need extra time to process the information regarding decisions. Although the speed of their cognitive thinking may not be as fast as that of younger persons, given enough time, partially impaired elderly will be able to understand the ramifications of each action under consideration. It is important to resist the temptation to equate speed of thought with level of capacity.

If possible, meet with a client more than once to acquire a stronger sense of the client's decision-making capacity. Multiple sessions will enhance a client's trust and comfort, leading to optimal functioning. It also allows the lawyer to see temporary variations in functioning. Lawyers can avoid poor functioning due to fatigue by scheduling shorter sessions when the client is most alert.

Home visits may be important to optimizing decision-making for many clients. If, for example, the lawyer needs to know whether the client can manage personal finances, the elder may be able to demonstrate her banking skills best at her own desk with her own checks.

3. Know the client's value framework

The standard against which capacity is measured is the standard set by the client's own habitual or considered standards and values, rather than against conventional standards held by others. Without knowledge of this personal frame of reference, capacity judgments have insufficient anchor and are likely to be based on someone else's judgment. For the long-time client whose functioning only recently appears to be slipping, the lawyer may already be familiar with the client's subjective frame of reference. Newer clients will require a more conscious inquiry.

4. Presume capacity

Merely raising the issue of capacity can be hurtful and damaging to the relationship. Once begun, the process could result in a major intrusion to the client's autonomy in the form of a guardianship. Therefore, the starting presumption is always one of capacity. For a formal assessment to take place, the concerned parties must offer substantiating evidence of impaired decision-making.