Diversity, Equity, & Inclusion (DEI) Series: A Note on Working with Older Adults and Clients with Diminished Capacity

By Allison Thomas and Niya Fonville

Social isolation creates an increased risk for elder abuse.[1] Thus, with the emergence of the pandemic and with the number of elderly individuals in our society, lawyers may experience an influx of elderly clients. It’s important to note at the onset that not every elderly client will have diminished capacity. You should always assume that adults, regardless of their age, have capacity. The purpose of this blog post is to help lawyers navigate a client relationship with elderly clients who experience a decrease in cognitive abilities.

Lawyers should initially navigate the client relationship by first getting to know their client. Treat them as you would treat any other client. This first initial conversation should be where you develop an understanding of your client’s needs, establish rapport, and take notice of any concerning behavior that may indicate your client may have diminished capacity. It is unlikely that you will be able to determine diminished capacity within the first interview. Rather, assessment of capacity is a never-ending process that continues until the end of the client-lawyer relationship.

Once you’ve established that your client may be experiencing diminished capacity, there are a few tips which can help you to successfully navigate the lawyer-client relationship in a way that fits the client’s needs. [2]

Tip #1: In the initial interview, get to know your client. If you notice any signs that the client may be experiencing a diminished capacity, determine if there could be another cause such as hearing impairment, medication side effects, visual impairments, etc. If a client has trouble answering questions, it could likely be that your client has trouble hearing them. If there are no other explanations, you may need to seek a professional to determine capacity. Be wary in using your own assessment tool as lawyers are often not trained in the psychological field.

Tip #2: Evaluate your client’s capacity by considering your client’s culture. Culture can significantly impact the way we evaluate for capacity. What an attorney may believe are signs of diminished capacity can be actions or beliefs common to the client’s culture. Certain traits may be common in one culture and abnormal in other. This makes it extremely important to understand your client’s culture as we experience an increase in culture diversity. [3]

Tip #3: Find a way to accommodate to your client’s needs. This could be using shorter sentences, pausing to allow time for understanding, or using simpler words. It is also important to practice gradual counseling. Clients do not have to make decisions immediately. Instead, remind them of their goals and values and give them time to decide. [4]

Tip #4: Acknowledge and examine any biases and prejudices you may have about age and incapacity. As lawyers we always have our client’s best interest at heart. However, it is not uncommon for people to undervalue the opinions of clients with diminished capacity. It is important to disregard any notions that “fully capable” adults know better than the client with diminished capacity. When we disregard our biases and prejudices, we maximize the client’s self-esteem and autonomy. [5]

Tip #5: Remember that clients with diminished capacity can still have sufficient decisional capacity to manage other matters and to express wishes for the future. It is important to identify what mental tasks and skills your client has retained. Identifying the abilities of your client can allow you to meet your client’s “needs while avoiding unnecessary, restrictive, or intrusive interventions.”[6]

Overall, the important take away is to evaluate your individual client’s needs. While tips and tricks can be helpful in representing elderly clients with diminished capacity, each and every representation needs to be tailored to your specific client. However, following these few simple tips can help you better perform your duties as an attorney. We are in unprecedented times and to better suit our clients, we can take the steps to educate ourselves.

For more information on this topic and other topics in elder law, visit https://www.americanbar.org/groups/senior_lawyers/resources/elder-law/ and https://justiceinaging.org/resource-library/.

[1] Makaroun, L. K., Bachrach, R. L., & Rosland, A.M., Elder Abuse in the Time of COVID-19 – Increased Risks for Older Adults and Their Caregivers, The Am. J of Geriatric Psychiatry, 28(8), 876–880. https://doi.org/10.1016/j.jagp.2020.05.017 (2020).

[2] This list of helpful tips is not meant to be exhaustive.

[3] Helen Y. Kim, Do I Really Understand? Cultural Concerns in Determining Diminished Capacity, 15 Elder L.J. 265, 270 (2007).

[4] Tips 1 and 2 were drafted based on the experience and advice of Professor Roger Manus, the founding director of the Senior Law Clinic at Campbell.

[5] Ralph C. Brashier, Incapacity and the Infancy Illation, 71 Ark. L. Rev. 1 (2018).

[6] James H. Pietsch, Becoming A “Dementia-Capable” Attorney – Representing Individuals with Dementia, 19 Hawaii B.J. 1 (2015).