Trusts and Estates

Ca. Trs. & Estates Quarterly 2023, VOLUME 29, ISSUE 2

WHAT ATTORNEYS NEED TO KNOW ABOUT A CLIENT’S COGNITIVE CAPACITY

By Bonnie J. Olsen, Ph.D.*

I. SYNOPSIS

As the population of older adults grows, estate and probate attorneys will have increasing interactions with clients with diminished decision-making ability. Cognitive impairment, the most common cause of diminished capacity in older adults, may impact a range of acts that carry legal import, including entering into an attorney-client relationship, making or amending a testamentary disposition, appointing a power of attorney, and executing a trust agreement. The specter of incapacity can undermine the legal effectiveness of a client’s decisions and serve as a predicate for challenges to the validity of a client’s estate plans. Issues of client capacity also affect the attorney-client relationship and representation. Given the implications of capacity for legal practice, attorneys should have a basic understanding of capacity and become familiar with signs of cognitive impairment, available resources for cognitive assessment, and best practices in meeting with clients who may be cognitively impaired.

II. CALIFORNIA ATTORNEYS’ LEGAL DUTIES AND ETHICAL OBLIGATIONS TO CLIENTS WITH DIMINISHED CAPACITY

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