By TEXCOM’s Sub-Committee on Ethics
Headnote: Advanced Consent to Protective Disclosure for Incapacitated Client
Summary: The Standing Committee on Professional Responsibility and Conduct of the State Bar (COPRAC) has issued a detailed and lengthy opinion dealing with an attorney’s duties when representing an incapacitated client. The opinion is a must read for trusts and estates practitioners.
A key conclusion in the opinion is: “A lawyer representing a competent client may propose to the client that the client give advanced consent to protective disclosure in the event that the client later becomes incapacitated and that incapacity exposes the client to harm. If appropriately limited and informed, such a consent is ethically proper.”
A link to the opinion follows: https://www.calbar.ca.gov/Portals/0/documents/publicComment/2021/COPRAC-Formal-Opinion-No.2021-207.pdf