Mental health and the law: Part Two – Competency
RPC 1.14(a) directs lawyers to, whenever possible, “maintain a normal client-lawyer relationship with the client” if his capacity to make “adequately considered decisions” is diminished. As discussed in a prior post, one in 25 Americans suffer from serious mental health illness; one in five suffer from mental illnesses which may, at one point or another, impair their ability to make competent decisions. The possibility of representing a client who may require guardian increases when one factors in the increase in Alzheimer’s and dementia diagnoses. Those working in the personal injury or workers compensation fields are also likely to encounter those who, due to traumatic brain injuries, may have impaired decision-making skills.
A lawyer cannot move to appoint a guardian ad litem just because his client uses poor judgment or eccentric. However, when a lawyer “cannot adequately act in the client’s interest,” and believes that the client has diminished capacity that places him “at risk of substantial physical, financial or other harm,” the lawyer may take certain “reasonably necessary protective action.” RPC 1.14(b). This includes “consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.” Lawyers should keep in mind that, while taking protective action, they can only reveal information about the client
“to the extent reasonably necessary to protect the client’s interests.” RPC 1.14(c); 1.6(a).
Before moving to appoint a guardian, a personal injury lawyer should determine if the client has a power of attorney already in place. It is increasingly prevalent for adults to write out their wishes in advance as to healthcare, legal and financial decision-making. If the power of attorney can be triggered by a loss of competency, the process may be initiated by the designated attorney-in-fact.
Of course, in the personal injury context, a client’s mental illness may be apparent from the outset of the case, disclosed by the client himself, or documented in his medical records. Because the appointment of a guardian is a drastic measure and because of the potential implications for his representation of the client, the attorney should immediately determine whether a guardian ad litem or other representative may be necessary. Up next: mental health issues and damages.