Flux Capacity

Posted By Bradford Masters, Sep 29, 2013

A prospective client has just sat down in front of your desk. As usual, you have a general idea of why this person is here, but experience has taught you to be ready for anything — from tears to angry outbursts. After a few minutes, you notice that your interviewee is rambling and not making much sense. When you ask for clarification about a certain event, your client looks at you quizzically and claims that the event never happened. Then, when you ask about the son he has just fondly told you about, he laughs and tells you that he only has daughters. It dawns on you that the client may be having issues with cognitive capacity. Lawyers must keep in mind the special rules governing the duty owed to such clients.

Legal Capacity

For lawyers, cognitive capacity issues raise the question of “legal capacity.” The precise definition of “legal capacity” depends on the situation. In California, the Civil Code and Probate Code define capacity in a number of different contexts, including the capacity to contract, to convey and to give informed consent. Probate Code § 812, for example, defines “testamentary capacity” as “the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant . . . the rights, duties and responsibilities . . . probable consequences . . . and significant risks . . . in the decision.” Significantly, the standard by which a judge will evaluate testamentary capacity is lower than the standard by which a judge will evaluate capacity in other contexts. In this regard, a 1948 case, Estate of Selb, upheld the rule that a testator’s testamentary capacity can still be valid even in spite of “old age, feebleness, forgetfulness, filthy personal habits . . . absent-mindedness and mental confusion.” Selb is still good law. The takeaway message is that “legal capacity” is a term of art whose exact definition varies according to statute and case law.

Threshold Determination

Remember that you first must make a threshold determination that the client has the capacity to retain counsel. The easiest case is when there is a preexisting relationship between you and the client. The attorney can simply compare the client’s present behavior and cognitive skills with how the client presented earlier. Where you have no history with the client, however, you must pay attention to the other details that help fill out the overall picture. Such indicia are the identity of the person bringing the client to the office, the client’s stated purpose for seeking legal counsel, and any ulterior motives of a close family member who agrees to pay for the client’s legal fees.

Documentary Evidence

 As soon as you begin working, it is wise to start building the evidentiary record against a possible future challenge to the propriety of the signatory’s capacity. One good habit is to keep meticulous notes. You also might try writing an opinion letter, which has the additional benefit of assisting a client with cognitive impairment by giving him or her a chance to review your advice. Another common piece of documentary evidence that could be used to preempt future litigation is a videotape of the client. This can backfire, however, if the client rambles or appears forgetful. A formal clinical capacity assessment can also be persuasive (though not determinative) in future litigation, but remember that this report is discoverable.

In some form or another, most of today’s lawyers should expect to deal with questions of capacity at some point in their career. As always — but particularly in the case of clients with capacity issues — keep in mind that the documents you produce may be subject to close scrutiny by family, friends, and fact-finders. By knowing the various standards by which legal capacity is judged, you will be able to better protect your clients’ wishes. Although most questions of legal capacity concern the growing population of baby boomers, the issue is not limited to estate planning, wills, or trusts. The question of capacity can also arise when working with minors, the mentally ill, and substance abusers. Thus, there exists the likelihood that over the course of your career you will encounter a client for whom you will have to make a capacity determination.

For more insight on the issues of legal capacity, see Sherrill Y. Tanibata, Mind over Matters, Los Angeles Lawyer, Oct. 2007, at 28-34.