How should an attorney provide legal services to a client who appears to have less than full mental capacity?
Particularly in the practice area of elder law, attorneys frequently face difficult issues as the mental competency of some clients may be in decline. Rule 1.14 provides specific guidance to attorneys in that situation. Entitled, “Client under a Disability,” that rule discusses both the situation where a client s abilities are merely limited and where that client just cannot act in his or her own best interest. The comments to Rule 1.14 provide helpful direction to an attorney making the difficult decision as to what, if any, protective action he needs to take on behalf of his client. Note that the rule does contemplate that such protective action may include, where appropriate, seeking the appointment of a guardian for the client. However, the attorney should not represent some third party in bringing that guardianship petition but instead should himself serve as petitioner. LEO 1769.
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