ENGAGEMENT LETTERS: A GUIDE FOR PRACTITIONERS
VI. CLIENT UNDER A DISABILITY
INTRODUCTION
With longer life expectancy, it is increasingly common for clients to experience a period of incapacity due to physical or mental disabilities. The form in this Section is designed as an optional addition to an estate planning engagement letter. It contemplates the possibility of future disability and expresses the manner in which the lawyer may provide legal services in that eventuality. It also briefly mentions the steps that the client might take to protect the client's interests and assure that the client's intentions are honored. Finally, it authorizes the lawyer to communicate with others if the lawyer becomes concerned regarding the client's capacity. In that connection it refers to ABA Formal Opinion 96-404, which discusses the lawyer's professional responsibilities to a disabled client.
References to the ACTEC Commentaries (3d Edition):
(Note that the page numbers shown below refer to the printed version of the ACTEC Commentaries)
Facilitating Informed Judgment by Clients, p. 53
Apparently Disabled Client (re duty of Confidentiality), p. 128
Disabled Client (re Conflict of Interest), p. 157
Client under a Disability, pp. 216-220
CLIENT UNDER A DISABILITY
CHECKLISTI. Who is the client if no guardianship or conservatorship is involved? Pre-need Planning
A. The identity of the client is ordinarily not an issue if the lawyer is providing general estate planning services for a competent client. If the lawyer will be paid by another person, the lawyer must comply with the requirements of MRPC 1.8(f) which requires consultation with the client, maintenance of confidentiality and preservation of the lawyer's independence. If the lawyer is asked to provide services for a person whose competence is in doubt, the identity of the client may be more doubtful. Some authorities suggest that a disabled client lacks authority to enter into a lawyer-client relationship.
B. The lawyer and client may wish to discuss the advantages of pre-need disability planning, including the possible use of revocable trusts, durable powers of attorney and health care directives.
C. Engagement Letter. It may be desirable that the lawyer provide the client with an engagement letter which describes the services to be performed in connection with pre-need disability planning.
II. Who is the client if a guardianship or conservatorship exists or is contemplated?
A. If the person who is, or may be, the subject of a guardianship or conservatorship was a client of the lawyer, that relationship may still exist. If so, the lawyer must determine whether the local law permits the lawyer to provide assistance to the fiduciary or person seeking appointment. Some jurisdictions permit the lawyer to seek the appointment of a guardian or conservator (see ABA Formal Opinion 96-404), while others, such as Florida, do not.
B. If the lawyer has not represented the person for whom a guardianship or conservatorship exists or is sought to be imposed, the lawyer is generally free to represent the guardian or conservator. In such a case the fiduciary or petitioner is generally considered to be the client. However, some authorities speak of the lawyer representing the fiduciary estate. Note that additional issues regarding confidentiality and conflicts may arise if there are multiple fiduciaries or petitioners.
C. Engagement Letter. In any case, the lawyer may choose to or may be required to enter into an engagement letter with the fiduciary or petitioner, which also describes the duties the fiduciary owes to the ward and to the court. Because of wide variations in the state law regarding the representation of guardians and conservators, no form of engagement letter is included. An engagement letter should cover the scope of the representation, state the basis upon which fees will be determined, express the extent to which the lawyer will preserve confidences of the fiduciary that relate to the fiduciary's duties as guardian or conservator, and describe the manner in which the lawyer would deal with conflicts of interest. In this connection note that some courts have held that the lawyer for a guardian owes duties to the ward.
ADDITION TO BASIC ENGAGEMENT LETTER
(PLANNING FOR DISABILITY)
As part of my services, I will discuss with you the steps you might take to protect your interests and to see that your wishes are carried out if you become incapacitated. In particular, I will review with you the advantages and disadvantages of (1) a durable power of attorney authorizing others to act on your behalf with respect to your interests and your health care, (2) directive to physicians, and (3) revocable trust. Using one or more of those tools may eliminate the necessity of appointing a guardian if you become incapacitated. Importantly, you may nominate a person to act as the guardian or conservator of your property and your person if the appointment of a guardian or conservator is ever required.
If concerns develop regarding your capacity [optional: and my representation of you has not been terminated either by you or pursuant to your engagement letter with me], I will continue to represent you and to protect your interests to the extent consistent with my standards of practice and ethical responsibilities. A 1996 ethics opinion issued by the American Bar Association (Formal Opinion 96-404) concludes that, when a client is unable to act adequately in his own interest, the lawyer may take appropriate action in assessing the client's capacity and considering protective action [optional: (which may include seeking appointment of a guardian/conservator)]. To the extent I would continue to act on your behalf, I would only take actions that I reasonably believe to be in your best interests and consistent with your previously expressed wishes. Unless you direct me otherwise in writing, you authorize me in such representation (1) to communicate with your family, your physicians and your other advisors and disclose to them such pertinent confidential information as I may determine to be reasonably appropriate under the circumstances, and (2) to represent one or more members of your family or other advisors acting in a fiduciary or like capacity for you or your property (excluding, however, any proceeding involving determination of your capacity).
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