Reform That Understands Our Seniors: How Interdisciplinary Services Can Help Solve the Capacity Riddle in Elder Law

Reform That Understands Our Seniors: How Interdisciplinary Services Can Help Solve the Capacity Riddle in Elder Law

By Thomas Richard Stasi*

*J.D. Candidate 2012, University of Michigan Law School; B.A. 2009, Duke University. Contributing Editor, University of Michigan Journal of Law Reform, Volume 45.

Excerpt from Reform That Understands Our Seniors: How Interdisciplinary Services Can Help Solve the Capacity Riddle in Elder Law, 45 U. Mich. J.L. Reform 695 (Spring, 2012)

As individuals age, they face an increased likelihood of diminished capacity, which can pose significant challenges in establishing and engaging in attorney-client relationships. 1 The US Department of Health and Human Services projects that the number of individuals age eighty-five and older will increase by more than fifty percent, from 4.2 million in 2000 to 6.6 million in 2020. 2 Furthermore, nearly half of all individuals who live to eighty-five years old will experience some form of dementia. 3 Although dementia is not an inevitable consequence of aging, an expanding elderly population 4 will likely lead to greater numbers of diminished legal capacity questions. 5 In light of this, attorneys need to adopt effective strategies for assessing legal capacity in their everyday practices. Such policies should seek to preserve a client's autonomy without creating an extraordinary risk of malpractice liability.

It is critical that attorneys ensure the accuracy of capacity evaluations because findings of incapacity have the potential to significantly compromise a client's autonomy. 6 However, attorneys may arrive at erroneous conclusions because of personal biases or concerns about malpractice liability. Indeed, subcomponents of elder law, such as life planning, are often rife with opportunities for miscommunication and misinterpretation. 7

Attorneys often lack the proper professional guidance in determining legal capacity. Not only is capacity an abstract concept, but the Model Rules of Professional Conduct (the Model Rules) also do not provide practical guidelines for attorneys. 8 Rather, the Model Rules charge attorneys with the responsibility ...

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