While attorneys are not qualified to diagnose mental illness or assess a client’s mental capacity, it is important for lawyers to be aware of each client’s mental well-being and cognizant of the ethical and procedural issues in play they suspect a client may suffer from diminished mental capacity. The client’s right to self-determination is key; however, courts and attorneys must be mindful of occasions where an individual’s diminished capacity may interfere with their ability to act within their own best interests. The RPCs, statutes, caselaw and civil procedure provide attorneys guidance in navigating the representation of a potentially mentally diminished client.

RPCs

If you, as an attorney, have reason to believe that a client has diminished mental capacity, the RPCs mandate that you must nonetheless continue to maintain as normal an attorney-client relationship as possible under the circumstances. RPC 1.14(a). In fact, under RPC 1.2(a), you are required to “abide the client’s decisions” and to do so with “reasonable diligence” pursuant to RPC 1.3. Your role as an attorney is “not to determine whether the client is competent to make a decision, but to advocate the decision the client makes.” In the Matter of M.R., 135 N.J. 155, 176 (1994). That role, however, does not extend to advocating client decisions that are “patently absurd or that pose an undue risk to the client.” Id.