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. In determining whether to modify an order under this subsection, the court must consider factors that include, but need not be limited to, the following:
* * *
(3) use of drugs, alcohol, or any other substance in a way that interferes with the parent's ability to perform caretaking functions with respect to the child . . .
MENTAL HEALTH ISSUES
2018 Family Law Conference CH. 6 Pg. 10 MENTAL HEALTH ISSUES WHICH CAN IMPACT PARENTING/DECISION MAKING u Obsessive Compulsive Disorder (OCD) u Anxiety Disorder u Borderline Personality Disorder u Post-Traumatic Stress Disorder – Childhood Abuse u Schizophrenia u Autism Spectrum Disorders u Depression u Bipolar Disorder u Narcissism
MENTAL HEALTH DISORDERS AND DECISION-MAKING u Psychiatric disorders are defined as abnormalities of thought, affect and impulse control u The greatest functional impact of these illnesses on the lives of the mentally ill and society are not related to the symptoms of delusions, hallucinations, or depressed mood, but simply to making poor decisions
“Toward an Understanding of Decision Making in Severe Mental Illinois,”Caceda, Nemeroff, Harvery The Journal of Neuropsychiatry and Clinical Neuroscinces, Vol. 26, Issue 3, pp. 196-213
2018 Family Law Conference CH. 6 Pg. 11 MENTAL HEALTH IMPAIRMENTS TO DECISION-MAKING u Impaired Attention u Impaired Working Memory u Response Inhibition u Only 30-50% of patients adhere to protocol for antidepressants and medication u More than 50% of severely mentally ill are also affected by substance abuse disorders
“Toward an Understanding of Decision Making in Severe Mental Illinois,”Caceda, Nemeroff, Harvery The Journal of Neuropsychiatry and Clinical Neuroscinces, Vol. 26, Issue 3, pp. 196-213
BIPOLAR DISORDER
Bipolar disorder, also called manic-depressive, is a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks
National Institute of Mental Health
2018 Family Law Conference CH. 6 Pg. 12 PEOPLE HAVING A MANIC EPISODE MAY:
u Feel up, high, elated
u Have increased energy, feel jumpy, wired
u Have trouble sleeping
u Talk really fast about a variety of things
u Be agitated, irritable, “touchy”
u Think they can do a lot of things at one time
u Engage in risky behavior with spending money, having sex
NARCISSISTIC PERSONALITY DISORDER u Exaggerated feelings of self-importance, and lack of understanding for others’ feelings u Is not fatal u About 1% of the general population u Rarely seek therapy themselves – after all, there is nothing wrong with them u Should not be diagnosed by spouse’s therapist u Source: Dr. James Quigley and Dr. Jordan Rosenberg, The Beermann Institute
2018 Family Law Conference CH. 6 Pg. 13 DEPRESSION
u Persistent depressive disorder (also dysthymia) – depressed mood that lasts for at least 2 years
u Postpartum depression – can effect fathers too
u Psychotic depression – severe depression plus delusions or hallucinations
u Seasonal affective disorder
u Bipolar
BORDERLINE PERSONALITY DISORDER
Borderline personality disorder is a mental health disorder that impacts the way you think and feel about yourself and others, causing problems functioning in everyday life. It includes a pattern of unstable intense relationships, distorted self-image, extreme emotions and impulsiveness. With borderline personality disorder, you have an intense fear of abandonment or instability, and you may have difficulty tolerating being alone. Yet inappropriate anger, impulsiveness and frequent mood swings may push others away, even though you want to have loving and lasting relationships.
Mayo Clinic
2018 Family Law Conference CH. 6 Pg. 14 Mental Health 215 or Custodial Evaluation 604.10
u Supreme Court Rule 215 - discovery tool for mental health assessment u 750 ILCS 5/604.10 - Court may seek the advice of any professional to assist the court in determining the child’s best interest
THE IMPAIRED CLIENT WHEN IS MENTAL HEALTH “IN CONTROVERSY”
Illinois Supreme Court Rule 215 In any action in which the physical or mental condition of a party or of a person in the party’s custody or legal control is in controversy, the court, upon notice and made within a reasonable time before trial, may order such party to submit to a physical or mental examination.. . .
2018 Family Law Conference CH. 6 Pg. 15 WHEN MENTAL HEALTH IS “IN CONTROVERSY” u The party does not have to put his or her mental health in controversy – others can u In re Marriage of Epstein, 2014 IL App (1st) 114066-U, the unification therapist and the child representative put the father’s mental health in controversy for 215 u Estate of Stevenson v. Stevenson, 256 N.E.2d 766 (1970)
u A psychiatrist who never treated Ms. Stevenson testified she had “deterioration of mentality”
u Rule 215 is a rule of discovery – party, in controversy, and for good cause shown
u Barred at trial from maintaining any defense relative to her mental condition and ability to manage her financial affairs
MENTAL HEALTH AND PARENTING S. CT. RULE 215 u In re Marriage of Cohen, 545 N.E.2d 362 (1989) u Mother filed multiple petitions that father had sexually abused daughter u Father filed petitions for rule against mother for not returning children u Father asked for 215 examinations of mother and daughter, denied u All of the interviews and examinations were at behest of the mother u New trial
2018 Family Law Conference CH. 6 Pg. 16 CUSTODIAL EVALUATION 750 ILCS 5/604.10 (B) (b) Court's professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child's best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects. A professional consulted by the court shall testify as the court's witness and be subject to cross-examination. The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508. The professional's report must, at a minimum, set forth the following: (1) a description of the procedures employed during the evaluation; (2) a report of the data collected; (3) all test results; (4) any conclusions of the professional relating to the allocation of parental responsibilities under Sections 602.5 and 602.7; (5) any recommendations of the professional concerning the allocation of parental responsibilities or the child's relocation; and (6) an explanation of any limitations in the evaluation or any reservations of the professional regarding the resulting recommendations.
MENTAL HEALTH: WHAT TO DO?
u Have releases to talk to client’s therapist
u Talk to client’s family or close friends
u Document discussions and decisions
u Understand that there will be relapses
u Consider Judge, Educate Judge
u If necessary, ask for GAL who “gets” mental health issues
u Flexible parenting plans, 750 ILCS 5/602.5(c)(3) considers the mental and physical health of all family members involved
2018 Family Law Conference CH. 6 Pg. 17 MENTAL HEALTH ISSUES YOUR CLIENTS ARE NOT ALONE u Jon Hamm - depression u Catherine Zeta-Jones – bipolar II u Abraham Lincoln – “melancholy” (depression) u Nikola Tesla – anxiety, OCD u Carrie Fisher – bipolar, addiction u Britney Spears – breakdown, conservatorship u Winston Churchill – bipolar disorder u Brooke Shields – postpartum depression u Halle Berry – suicide attempt u Darrell Hammond (SNL) – borderline personality
THE END
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