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Rule1.14. Client with diminished capacity.

(a) When a client?s capacity to makeadequately considered decisions in connection with a representation isdiminished, whether because of minority, mental impairment or for some otherreason, the licensed paralegal practitioner shall, as far as reasonably possible, maintain a normal licensed paralegalpractitioner-client relationship with the client.

(b) When the licensed paralegalpractitioner reasonably believes that the client has diminished capacity, is at riskof substantial physical, financial or other harm unless action istaken and cannot adequately act in the client?s own interest, the licensedparalegal practitioner may take reasonably necessary protective action, including consulting withindividuals or entities that have the ability to take action to protect theclient.

(c) Information relating to therepresentation of a client with diminished capacity is protected by Rule 1.6.  When taking protective action pursuant to paragraph(b), the licensed paralegal practitioner is impliedly authorized under Rule1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client?s interests.

 

Comment

[1] The normal licensed paralegal practitioner-clientrelationship is based on the assumption that the client, when properly advisedand assisted, is capable of making decisions about important matters. When theclient is a minor or suffers from a diminished mental capacity, however,maintaining the ordinary licensed paralegal practitioner-client relationshipmay not be possible in all respects. In particular, a severely incapacitatedperson may have no power to make legally binding decisions. Nevertheless, aclient with diminished capacity often has the ability to understand, deliberateupon and reach conclusions about matters affecting the client's own well-being.For example, children as young as five or six years of age, and certainly thoseof ten or twelve, are regarded as having opinions that are entitled to weightin legal proceedings concerning their custody. So also, it is recognized thatsome persons of advanced age can be quite capable of handling routine financialmatters while needing special legal protection concerning major transactions.

[2] The fact that a client suffers a disabilitydoes not diminish the licensed paralegal practitioner's obligation to treat theclient with attention and respect. Even if the person has a legalrepresentative, the licensed paralegal practitioner should as far as possibleaccord the represented person the status of client, particularly in maintainingcommunication.

[3] The client may wish to have family membersor other persons participate in discussions with the licensed paralegalpractitioner. When necessary to assist in the representation, the presence ofsuch persons generally does not affect the applicability of the attorney-clientevidentiary privilege. Nevertheless, the licensed paralegal practitioner mustkeep the client?s interests foremost and, except for protective actionauthorized under paragraph (b), must look to the client, and not familymembers, to make decisions on the client?s behalf.

[4] If a legal representative has already beenappointed for the client, the licensed paralegal practitioner should ordinarilylook to the representative for decisions on behalf of the client. In mattersinvolving a minor, whether the licensed paralegal practitioner should look tothe parents as natural guardians may depend on the type of proceeding or matterin which the licensed paralegal practitioner is representing the minor. If thelicensed paralegal practitioner represents the guardian as distinct from theward, and is aware that the guardian is acting adversely to the ward?sinterest, the licensed paralegal practitioner may have an obligation to preventor rectify the guardian?s misconduct. See Rule 1.2(d).

Taking Protective Action

[5] If a licensed paralegal practitionerreasonably believes that a client is at risk of substantial physical, financialor other harm unless action is taken, and that a normal licensed paralegalpractitioner-client relationship cannot be maintained as provided in paragraph(a) because the client lacks sufficient capacity to communicate or to makeadequately considered decisions in connection with the representation, thenparagraph (b) permits the licensed paralegal practitioner to take protectivemeasures deemed necessary. Such measures could include: consulting with familymembers, using a reconsideration period to permit clarification or improvementof circumstances, using voluntary surrogate decision-making tools such asdurable powers of attorney or consulting with support groups, professionalservices, adult-protective agencies or other individuals or entities that havethe ability to protect the client. In taking any protective action, thelicensed paralegal practitioner should be guided by such factors as the wishesand values of the client to the extent known, the client?s best interests andthe goals of intruding into the client?s decision-making autonomy to the leastextent feasible, maximizing client capacities and respecting the client?sfamily and social connections.

[6] In determining the extent of the client?sdiminished capacity, the licensed paralegal practitioner should consider andbalance such factors as: the client?s ability to articulate reasoning leadingto a decision, variability of state of mind and ability to appreciateconsequences of a decision; the substantive fairness of a decision; and theconsistency of a decision with the known long-term commitments and values ofthe client. In appropriate circumstances, the licensed paralegal practitionermay seek guidance from an appropriate diagnostician.

[7] If a legal representative has not beenappointed, the licensed paralegal practitioner should consider whetherappointment of a guardian ad litem, conservator or guardian is necessary toprotect the client?s interests. Thus, if a client with diminished capacity hassubstantial property that should be sold for the client?s benefit, effectivecompletion of the transaction may require appointment of a legalrepresentative. In addition, rules of procedure in litigation sometimes providethat minors or persons with diminished capacity must be represented by aguardian or next friend if they do not have a general guardian. In manycircumstances, however, appointment of a legal representative may be moreexpensive or traumatic for the client than circumstances in fact require.Evaluation of such circumstances is a matter entrusted to the professionaljudgment of the licensed paralegal practitioner. In considering alternatives,however, the licensed paralegal practitioner should be aware of any law thatrequires the licensed paralegal practitioner to advocate the least restrictiveaction on behalf of the client.

Disclosure of the Client?s Condition

[8] Disclosure of the client?s diminishedcapacity could adversely affect the client?s interests. For example, raisingthe question of diminished capacity could, in some circumstances, lead toproceedings for involuntary commitment. Information relating to therepresentation is protected by Rule 1.6. Therefore, unless authorized to do so,the licensed paralegal practitioner may not disclose such information. Whentaking protective action pursuant to paragraph (b), the licensed paralegalpractitioner is impliedly authorized to make the necessary disclosures, evenwhen the client directs the licensed paralegal practitioner to the contrary.Nevertheless, given the risks of disclosure, paragraph (c) limits what thelicensed paralegal practitioner may disclose in consulting with otherindividuals or entities or seeking the appointment of a legal representative.At the very least, the licensed paralegal practitioner should determine whetherit is likely that the person or entity consulted with will act adversely to theclient?s interests before discussing matters related to the client. Thelicensed paralegal practitioner?s position in such cases is an unavoidablydifficult one.

[9] Reserved.

[10] Reserved.

 

Effective November 1, 2018