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Capacity Issues in Estate Planning - Dealing With the Diminished Client

Fri, 11/20/2015 - 16:03 -- admin25

by Brandy Baxter-Thompson

Lawyers have an ethical obligation to make a good faith effort to determine if a potential client has the requisite capacity to retain counsel as well as enter into the contemplated transaction. Assessment of the client’s capacity begins with the initial contact. The hallmarks of diminished capacity include memory loss, confusion, agitation, inappropriate dress, or grooming issues. For estate planners who have a long-term relationship with a client, this issue may not come up until many years into your representation.

The ABA handbook on Assessment of Older Adults with Diminished Capacity discourages lawyers from utilizing clinical assessment tools, such as the Mini-Mental Status Exam (MMSE), because most lawyers are not trained to use or interpret these tools. Instead, you should engage a practical approach to assessing capacity. Make sure to ask open-ended questions, such as “What can I help you with today?” rather than those that require a “yes” or “no” response, such as “Do you want me to prepare a will?” It is imperative to establish that the client is able to communicate his desires effectively.

In addition to looking for signs of diminished capacity, make sure the client is not subject to the undue influence of another. Have the client fully explain what she needs and allow her the time to answer without prompting or interruption. Do not allow someone else to speak for the client, even a spouse. If you believe she has the requisite mental capacity and is not subject to undue influence, there are some practical steps you should take to protect the client’s estate plan:

  • Have the client mark up a prior will to show the desired changes.
  • Meet with the client alone, limit communication with any beneficiaries, and avoid including them in client meetings or during the will signing.
  • Do not serve as a witness or notary public to the will, thereby eliminating potential disinterested witnesses.
  • Consider using witnesses that know the testator and are willing to testify in a will contest.
  • Consider video taping the will signing ceremony.
  • Consider having the client write a letter to the family explaining the reason(s) for the estate plan changes.
  • Consider having the client undergo a mental examination to establish capacity.
  • Make sure the client understands that a “no contest” clause is ineffective if a family member has been completely disinherited.
  • Consider consulting with a probate litigation attorney to develop a plan of action to assist in the future defense of the estate plan.

While avoiding a will contest may not be possible, these suggestions can assist the litigator in defending the estate plan. Also, bear in mind that your estate planning file is discoverable and no longer protected by the lawyer-client privilege in a will or trust contest. See TRE 503(d)(2).

If you believe that your client is incapacitated, Texas Disciplinary Rule of Professional Conduct 1.02(g) requires that a lawyer take “reasonable action to secure the appointment of a legal guardian or other representative” if necessary to protect the client. Rule 1.05(c)(4) authorizes the lawyer to reveal confidential information, which is defined to include both privileged and unprivileged communications, in order to comply with the Rules, including 1.02(g).             

Before seeking a guardianship to protect a client, you should attempt to locate an agent under previously prepared powers of attorney. If none is available or appropriate to assist the client, you may file an Information Letter with the court that complies with Texas Estates Code Section 1102.003. Given the circumstances, it may become necessary to file an application for guardianship as the applicant. A lawyer is protected from civil liability for filing a guardianship application if it is done in order to comport with the duty prescribed by Texas Disciplinary Rule of Professional Conduct 1.02(g). Franks v. Roades, 310 S.W.3d 615 (Tex. App.––Corpus Christi 2010, no pet.).

If you believe that your client is the victim of elder abuse, either physical or financial, you have a duty to report the abuse and can held criminally liable for failing to do so. Tex. Hum. Res. Code Ann. § 48.051. You can make a report by calling Adult Protective Services at 1-800-252-5400 or using their secured website: In addition to Adult Protective Services, which is a statewide agency, Dallas County has the Elder Financial Safety Center. To utilize the Safety Center’s services call (214)-525-6130 or (214)-823-5700.

Brandy Baxter-Thompson, of Calloway, Norris, Burdette & Weber, PLLC, is Board Certified in Estate Planning and Probate. She can be reached at

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