CH 6 the Impaired Client Final Copy
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REPRESENTING THE IMPAIRED CLIENT KATHRYN L. CIESLA JENNIFER CUNNINGHAM BEELER THE IMPAIRED CLIENT 1. Diminished Mental Capacity Such as: Dementia, Alzheimer’s 2. Addiction 3. Mental Health Such as: Bipolar Disorder, Anxiety Disorder, Chronic Depression 2018 Family Law Conference CH. 6 Pg. 1 Diminished Capacity CODE OF ETHICS RULE 1.14 CLIENT WITH DIMINISHED CAPACITY Rule 1.14 (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. 2018 Family Law Conference CH. 6 Pg. 2 CODE OF ETHICS RULE 1.14 CLIENT WITH DIMINISHED CAPACITY Rule 1.14 (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. CODE OF ETHICS RULE 1.14 CLIENT WITH DIMINISHED CAPACITY Rule 1.14 (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. 2018 Family Law Conference CH. 6 Pg. 3 POTENTIALLY IMPAIRED CLIENT REPRESENTATION Ø Get a release to speak to that client’s: Ø Prescribing Physician Ø Therapist Ø Support Person or Sponsor Ø Family Members Ø Consider: Ø Securing a letter from client’s physician which confirms client’s ability to understand choices and make knowing decisions – and keep current with the physician Ø Drafting a letter to the client – which he/she signs – advising him/her that she is waiving rights or is taking unreasonable positions PREDATORY MARRIAGE: CAPACITY TO MARRY VS. TESTAMENTARY CAPACITY u Banton v. Banton, 1998 CanLII 14926 u Maurice Banton – 89 years of age u Children put Maurice in Lifestyles Senior Living u Muna - 31 year old waitress u Marriage and new wills u Maurice did not have the testamentary capacity to make the wills u But he did have the capacity to marry 2018 Family Law Conference CH. 6 Pg. 4 IMPAIRED CLIENT PREDATORY MARRIAGE Sec. 301. Declaration of Invalidity - Grounds. The court shall enter its judgment declaring the invalidity of a marriage (formerly known as annulment) entered into under the following circumstances: (1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage; (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity; (3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or (4) the marriage is prohibited. DECLARATION OF INVALIDITY TIMING UNDER IMDMA Sec. 302. Time of Commencement. (a) A declaration of invalidity under paragraphs (1) through (3) of Section 301 may be sought by any of the following persons and must be commenced within the times specified (1) for any of the reasons set forth in paragraph (1) of Section 301, by either party or by the legal representative of the party who lacked capacity to consent, no later than 90 days after the petitioner obtained knowledge of the described condition; (2) for the reason set forth in paragraph (2) of Section 301, by either party, no later than one year after the petitioner obtained knowledge of the described condition; (3) for the reason set forth in paragraph (3) of Section 301, by the underaged party, his parent or guardian, prior to the time the underaged party reaches the age at which he could have married without needing to satisfy the omitted requirement. (b) In no event may a declaration of invalidity of marriage be sought after the death of either party to the marriage under subsections (1), (2) and (3) of Section 301. (c) A declaration of invalidity for the reason set forth in paragraph (4) of Section 301 may be sought by either party, the legal spouse in case of a bigamous marriage, the State's Attorney or a child of either party, at any time not to exceed 3 years following the death of the first party to die. 2018 Family Law Conference CH. 6 Pg. 5 WHEN TO APPOINT A GUARDIAN FOR PERSON AND/OR ESTATE Probate Act - 755 ILCS 5/11a-2 u “Person with a disability” means a person over 18 years of age or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects. CAN A CLIENT WITH DIMINISHED MENTAL CAPACITY FILE? u A guardian may file to dissolve the ward’s marriage if the court holds a “best interest hearing” and determines, by clear and convincing evidence, that dissolution is in the ward’s best interest. u In re Marriage of Drews, 115 Ill.2d 201 (1986) u Karbin v. Karbin, 2012 IL 112815 Supreme Court 2012 Overrules IRMO Drews u In re the Marriage of Warga, 46 N.E.3rd 268 (2015) 2018 Family Law Conference CH. 6 Pg. 6 DISSOLUTION UNDER DREWS u In re Marriage of Drews, 115 Ill. 2d 201 (1986) u Drews was decided when there had to be grounds for dissolution of marriage u The role of a plenary guardian increased over the years – statute read “expansively” for implied authority u In re Estate of Longeway – guardian can make decisions on life-sustaining measures u In re Marriage of Burgess – Guardian has standing to pursue filed dissolution action IRMO KARBIN u Husband filed petition, wife’s guardian filed counter- petition u Status of a ward’s marriage impacts the ward’s support, care, comfort – all areas in which guardian may be empowered to act u Best interest hearing – clear and convincing evidence u Can always be “undone” 2018 Family Law Conference CH. 6 Pg. 7 Standing for Contesting Hearing IRMO of Warga 46 N.E.3rd 268 (2015) u After Karbin, Probate Act amended to codify u Does the ward’s spouse have standing to participate in best interest hearing? u Can contest the divorce, but cannot contest the guardian’s right to file for divorce in a best interest hearing ADDICTION 2018 Family Law Conference CH. 6 Pg. 8 ADDICTION u 15.1 million adults over 18 years of age – 6.2% of this age bracket – have an alcohol use disorder u 21.5 million adults over the age of 12 have battled substance abuse u 80% of those adults also suffer from alcohol abuse u Addiction is considered to be, on average, hereditary about 50% of the time • Addicts have an incentive to lie • to hide the addiction • because of embarrassment Source: National Survey on Drug Use and Health 2014 ADDICTION -RELAPSE u Relapse is part of recovery u Removing the drug or drink is easy – changing behaviors is difficult u Generally, first 90 days after recovery are when relapses occur u Underlying mental health issues, if not addressed, can increase relapse u You are the attorney, you are not the babysitter 2018 Family Law Conference CH. 6 Pg. 9 IMDMA – 603.10 Sec. 603.10. Restriction of parental responsibilities. (a) After a hearing, if the court finds by a preponderance of the evidence that a parent engaged in any conduct that seriously endangered the child's mental, moral, or physical health or that significantly impaired the child's emotional development, the court shall enter orders as necessary to protect the child. Such orders may include, but are not limited to, orders for one or more of the following: * * * (5) requiring a parent to abstain from possessing or consuming alcohol or non-prescribed drugs while exercising parenting time with the child and within a specified period immediately preceding the exercise of parenting time; * * * (8) requiring a parent to complete a treatment program for perpetrators of abuse, for drug or alcohol abuse, or for other behavior that is the basis for restricting parental responsibilities under this Section; and (9) any other constraints or conditions that the court deems necessary to provide for the child's safety or welfare. (b) The court may modify an order restricting parental responsibilities if, after a hearing, the court finds by a preponderance of the evidence that a modification is in the child's best interests based on (i) a change of circumstances that occurred after the entry of an order restricting parental responsibilities; or (ii) conduct of which the court was previously unaware that seriously endangers the child.