If you have done everything you can to optimize the client's opportunity to act with maximum capacity, you are ready to perform a preliminary assessment. This assessment may involve most or all of the steps listed here, depending on the point at which your conclusion is clear or professional referral is needed.

1. Obtain Consent
This step does not refer to the normal questions asked to ensure the client understand options and consequences. If the lawyer proceeds to a formal screening test or makes a referral for physical or psychological testing, client consent is an ethical necessity. This consent also conveys respect for the client and a determination to protect the client's interests.

2. Physical Exam
The lawyer should provide the impetus to ensure that alternate causes of incapacity are ruled out. Deficiencies that appear cognitive often are caused by over medication, toxic combinations of medications, poor diet, vitamin deficiencies, depression, infectious diseases, head trauma, poor eyesight or other treatable conditions. By discovering and addressing medically treatable conditions first, capacity issues may be rendered moot or at least diminished.

3. Standardized Screen
After proceeding through familiarity with the client, optimizing the environment and obtaining consent, the lawyer should consider using a brief questionnaire on mental status. While these tests will not produce a firm conclusion, they can confirm the need for a formal assessment.

Two of the most used tests are the Mini-Mental Status Examination (MMSE) and the Short Portable Status Questionnaire (SPSQ).

The MMSE is a 30-item test that takes about 10 minutes to administer. It covers memory, language, spatial ability and set shifting. Scores range from 0 to 30 with scores below 24 regarded as abnormal.

The SPSQ assessment is a 10-item test that evaluates orientation to time and place. It is scored by counting errors rather than correct answers.

The greatest danger with a standardized screening test is relying on it too much. A poor score does not rule out the ability to perform some decision-making tasks.

4. Task-Specific Assessment
The presence of some cognitive impairment does not provide information on the degree to which individuals can still use their remaining abilities to act autonomously since individuals adapt to limitations in countless and creative ways.

The lawyer, therefore, needs to consider the client's capacity for the specific legal task at hand, such as executing a power of attorney, signing a will, marrying or divorcing, agreeing to new living arrangements, donating a substantial asset, agreeing to or refusing a medical treatment, or other similar activities.

Because capacity is a shifting network of values and circumstances, it is recommended that a lawyer evaluate a client based on the following:

» Ability to articulate reasoning behind decisions

» Variability of state of mind; does client express the same wishes alone as when others are present; are these wishes consistent from week to week

» Ability to appreciate consequences of decision

» Irreversibility of decision

» Substantive fairness

» Consistency with lifetime convictions

For lawyers, regular and consistent documentation of capacity is essential.

5. Consultation and Referral
In borderline situations, the lawyer should seek consultation from a medical or mental health expert. Comment 5 to Model Rule 1.14 recognizes the appropriateness of such consultations in authorizing the lawyer to seek guidance from an appropriate diagnostician, even though disclosure of the client's disability could adversely affect the client's interest. The ABA's Standing Committee of Ethics and Professional Responsibility in Formal Opinion 96-404 relies on the impliedly authorized language of Rule 1.6(a) to conclude that limited disclosure to the extent necessary to act is impliedly authorized by the fact of representation.

In seeking a formal assessment, the question becomes who to use. If the client's own physician lacks special expertise, the preference would be to work with a multidisciplinary geriatric assessment team, providing members with a clear picture of the decision for which capacity is to be assessed,

© 2007 American Bar Association