Lauren is a 62-year-old woman who has a history of multiple strokes and was diagnosed with vascular dementia. She manages her severe mobility issues and short-term memory loss with the assistance of a court-appointed guardian, who was appointed after Lauren’s most recent stroke. Lauren contacted the Legal Clinic for the Disabled Inc. (LCD) nearly two years ago looking for assistance with housing issues and advanced planning documents.
At the time, Lauren did not have a guardian but did have medically determined losses in her cognitive abilities. Throughout Lauren’s relationship with LCD, Lauren’s attorneys have helped her balance her autonomy and independence with her intermittently limited competence to make legal decisions. After Lauren’s guardian was appointed, LCD attorneys were required to obtain approval from her guardian on all aspects of litigation while keeping Lauren equally informed about every legal proceeding and any changes in the status of her case.
This required LCD attorneys to maintain a constant dialogue between Lauren, her guardian and any other parties involved in the representation. While this coordination and communication put greater responsibility on LCD attorneys, it was ethically expected of them in their role as lawyers representing clients whose disabilities have an effect on their competence.
The evolution of Lauren’s case is not uncommon for LCD’s client population or for persons with disabilities in general. A client’s disabilities are often dynamic in nature and can change throughout the course of representation, placing the onus on the attorney to adapt to the client’s new circumstances. In these unique attorney-client situations, “competence” takes on a two-dimensional meaning: one is the client’s own competence to make the relevant decisions regarding the legal task, and the other is the lawyer’s competence to provide proper advocacy in light of the client’s needs. These two dimensions inform one another and require a close and honest relationship between all parties in order for the goals of representation to be achieved.
In general, the term “competence” is best understood when it is contextualized; a person is competent when he or she can do some action with some threshold level of capacity. In the legal setting, the typical questions of competence involve a client’s capacity to execute a document such as a will or contract, or to appoint a proxy such as in a power of attorney or health care power of attorney. Unfortunately, standards for competence are far from uniform and instead focus on a factual development of the client’s capacity. For example, there is no guidance in Pennsylvania’s power of attorney statute, 20 Pa. C.S. § 5601 et. seq. (2004), regarding the level of competence needed by the principal to appoint an agent. The Pennsylvania Supreme Court has stated in Vine v. Commonwealth of Pennsylvania, 607 Pa. 648, 672 (Pa. Sup. Ct. 2010), that any transactions made pursuant to a power of attorney are voidable “upon a showing that the principal lacked capacity at the time he or she executed the document in question,” but has not explained what that factual showing would consist of or what the threshold level of capacity is. The most guidance provided by Pennsylvania case law comes from dicta in Wilhelm v. Wilhelm, 657 A.2d 34, 39 (Pa. Super. Ct. 1995), where the Superior Court suggested that the appropriate standard for a power of attorney is whether the principal “appreciated what he was doing.”
In light of the law’s general silence regarding the issue of competence, it is left to the attorney representing a client with a disability to shoulder the burden of identifying the factors that raise the possibility of diminished capacity. Simply having a disability, even a mental disability, does not mean that the client has diminished capacity. Instead, the lawyer must assess whether the disability affects the client’s capacity to understand relevant information, to reason about the risks and benefits of his or her decision, to appreciate the nature of his or her own circumstances, and to understand the consequences of his or her actions. Valuable communication techniques such as having clients paraphrase the information provided to them or having clients explain their reasoning behind their decision allows the lawyer to ensure that clients have the sufficient level of capacity needed while also respecting their rights to autonomous decision-making. These techniques may require the lawyer to be patient and explain information several times or to communicate through an interpreter. It may require that the lawyer provide simplified written explanations of legal concepts or use other creative ways to present information. It may even require the lawyer to speak with the client’s mental health provider about the client’s limitations, although such contact raises obvious issues of confidentiality.
Regardless of the particular methods that a lawyer chooses to employ in identifying diminished capacity in his or her client, once a legitimate concern has been raised, the attorney is ethically obligated to “maintain a normal client-lawyer relationship with the client.” (See 204 Pa. Code § 1.14.) This rule recognizes that even a client with a diminished capacity “often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.” Furthermore, it means that the lawyer should treat the client with proper attention and respect, even if the person has a legal representative. In Lauren’s case, before a guardian was appointed, she lived in several friends’ homes before eventually moving to a homeless shelter. She was not physically able to come to LCD offices and did not have consistent access to a phone. Therefore, LCD attorneys coordinated with shelter staff about visit times and meeting rooms so as to protect confidentiality and to track Lauren’s constantly changing levels of competence. Once a guardian was appointed, Lauren continued to be included in all meetings and discussions through the course of litigation. She was consistently provided recaps of prior meetings and the course of any future representation.
Lauren’s case stands as an example of the type of flexibility that is required of a lawyer who represents persons living with disabilities. These individuals often face unjustified stereotypes and inaccurate preconceptions in their daily lives, even within the realm of legal services. Their lawyer must be able to communicate in a fashion that helps identify any degree of limitation to the client’s capacity while adhering to the lawyer’s ethical duty to treat his or her client with respect and dignity. The lawyer must also be ready to alter his or her practices to meet the client’s unique needs for access to representation, especially if those needs relate to the client’s degree of capacity. A successful attorney-client relationship can therefore only exist if the attorney is willing to explore both dimensions of competence in the partnership: his client’s as well as his own. •
Tomas Bednar is an Independence Foundation public interest fellow and staff attorney at the Legal Clinic for the Disabled Inc.