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Capacity and Undue Influence Online CLE Of Minds and Means: Capacity and Undue Influence .5 General CLE credit From the Oregon State Bar CLE seminar Basic Estate Planning 2018, presented on November 16, 2018 © 2018 Stephen Owen. All rights reserved. ii Chapter 7 Of Minds and Means: Capacity and Undue Influence STEPHEN OWEN Attorney at Law Portland, Oregon Contents I. Capacity Matters . .7–1 A. Introduction . 7–1 B. Recognizing Diminished Capacity. .7–1 C. Assessment of Capacity . .7–2 D. Working with Clients with Potential Diminished Capacity . .7–3 E. Documentation Regarding Capacity Issues . .7–4 F. Legal Standards of Capacity . 7–4 II. Undue Influence . 7–8 A. Introduction . 7–8 B. Defining Undue Influence Under Oregon Law. .7–8 C. Evidence of the Use of Undue Influence . 7–12 D. The Existence of a Confidential or Fiduciary Relationship . 7–13 E. Suspicious Circumstances. 7–15 F. Conclusion . 7–17 “A Client’s Capacity Is Defined in Many Ways” by Darin Dooley . 7–19 Chapter 7—Of Minds and Means: Capacity and Undue Influence Basic Estate Planning 2018 7–ii Chapter 7—Of Minds and Means: Capacity and Undue Influence I. CAPACITY MATTERS A. Introduction Whenever an attorney comes in contact with a person in regard to legal representation a determination of capacity is being made. This is true whether it is a prospective client or a long term one. Most times this determination follows the first rule of law in this area. That is to say a person is presumed to possess legal capacity unless it is shown that the person’s capacity is compromised. Van v. Van, 14 Or App 575, 578, (1973). Because so much of what an attorney reviews in both estate planning touches on legal capacity matters, counsel should be able to recognize signs of diminished capacity and how to proceed when such issues arise. Knowing how to proceed requires the ability to recognize and interpret indicia of diminished capacity and evaluate such in light of the elements of various forms of legal capacity. The attorney’s response is further enhanced by a basis of knowledge of the various definitions and determinations of a person’s capacity under statutory law and for various legal transactions. B. Recognizing Diminished Capacity Interactions with your client that raise concerns about capacity generally seem self- evident under an ‘I know it when I see it’ test. However, a practitioner in this area should key into specific areas of cognitive status and resulting conduct in order to address specific determinations of levels of capacity. A thorough examination of these issues is addressed in a joint publication by the American Bar Association in conjunction with the American Psychological Association entitled “Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers.” This publication is available free of charge at the APA’s website (https://www.apa.org/pi/aging/resources/guides/diminished-capacity.pdf) and includes helpful worksheets and other materials. While a comprehensive review of symptoms of diminished capacity is outside the scope of this presentation, certain areas of cognitive abilities should be reviewed in assessing capacity whenever such issues arise. These areas include memory, communication, comprehension, orientation, and significant changes in the client’s abilities and functional capabilities. Changes in the cognitive abilities of a long-term client may be more evident, but even with a new client there should be an attempt to establish a baseline of your observations of the client’s capacity issues. It is also useful to keep in mind that a determination of capacity is based upon what a person can do, not what they should do. Focus on the decisional making ability and not the propriety of the decisions if they are based upon intact cognitive reasoning. Note also the ethical duty to maintain, to the extent possible, a normal attorney client relationship with a client with diminished capacity. RPC 1.14 (a). Also recognize that many factors can affect how a person presents and whether concerns about capacity can be explained in other ways. A person’s physical abilities and educational or cultural backgrounds may affect how they express themselves and have little to do with their cognitive capacity. Temporary conditions can likewise affect how a person Basic Estate Planning 2018 7–1 Chapter 7—Of Minds and Means: Capacity and Undue Influence presents at a given time and such conditions may pass or can be treated. Examples include emotional distress, fatigue or delirium. C. Assessment of Capacity: When working with a client, an attorney should take steps to assess the requisite capacity of potentially diminished capacity clients. This should start from the initial contact with the client. It is important to note who contacted the attorney to set up an appointment. If it was a third party that contacted you, why? What is the third party’s understanding of the potential client’s situation? Are there issues with being able to directly communicate with the potential client, and if so, what are they? Was there another prior estate planning attorney whose services are no longer being used, and if so why? These initial considerations will start the basis for an assessment of the client capacity. In continuing to work with a client there will need to be additional observation and assessment in regard to the client’s capacity. This is not only necessary to advance the client’s goals, but also to assess the attorney’s potential ethical duties to the client. Oregon Rule of Professional Conduct 1.14 addresses an attorney’s duties and responsibilities in dealing with a diminished capacity client. ORPC 1.14 is taken directly from the ABA’s Model Rules. “In determining the extent of the client's diminished capacity, the lawyer should consider and balance such factors as: the client's ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client.” Comment 6 to the ABA’s Model Rule 1.14. This commentary appears to mirror one commentator’s approach in this area that is set forth in detail in the “Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers” referenced above. In this article by Peter Margulies, Margulies describes six factors (five of which Comment 6 to Rule 1.14 expressly refers to) to assess capacity regarding a client’s capacity to undertake an action. These factors are: 1. The person's ability to articulate their reasoning behind the decision; 2. The variability of the person's state of mind; 3. The person's ability to appreciate the consequences of the decision; 4. The substantive fairness of the action being considered; 5. Consistency of the act or transaction with the person's lifetime values; 6. The irreversibility of the decision. In this approach, a person assesses capacity by observing the client’s decision- making process as it relates to the substance of the act to be taken. The first three factors are a functionality assessment regarding the cognitive ability of the person and the last three factors are considered more substantive as they are assessing the decision or action itself. This approach contrasts with the conventional objective tests of capacity that are unrelated to the specific action at hand. Once counsel has an understanding of the client’s cognitive Basic Estate Planning 2018 7–2 Chapter 7—Of Minds and Means: Capacity and Undue Influence abilities, such should be documented and applied to the legal definition of the capacity necessary to carry out a specific action. In the appropriate case, counsel may consider consulting with and referring a client to a medical professional in regard to further evaluate a client’s cognitive functioning. Recognize however that such an evaluation may not be assessing specific legal capacities and the fact that the referral was made can itself be an issue in estate planning matters as set forth below. All of this is to say that counsel working with a diminished capacity client should be continually considering the client’s circumstances and decision-making process in order to assess capacity. Based on the interactions with the client an attorney should be able come to some form of their assessment of the cognitive abilities of their client and be able to document such. Such assessment is necessary to further the client’s goals and, in some instances, ethically protect the client interests. D. Working with Clients with Potential Diminished Capacity: When capacity becomes an issue with a client, counsel should consider the following when interacting with a client: 1. Meet privately with the person, possibly after an introduction by a family member or trusted friend if that person set up the initial meeting. 2. Create a relaxing and comfortable interview environment, converse about a topic that interests the client. 3. Conduct the interview at the person’s best time of day. 4. Encourage the client to ask questions and state concerns. 5. Reassure the person that one purpose of meetings with counsel is to become better acquainted. 6. Use indirect questions regarding any concerns involving diminished capacity. Asking questions such as the identity of the President of the United States can be intimidating and put an elderly person on the spot. Asking other equally topical questions in the course of seemingly casual conversation can be just as helpful without unsettling an already defensive or uncomfortable older person. 7. Document your interaction with the client. Take verbatim notes as much as possible regarding evidence of the requisite factors for the capacity to undertake an act.
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