Diminished Capacity of Clients

Capacity: Ability to understand circumstances, make choices, and communicate them.
Incapacity: Inability to understand, choose, and communicate.
Diminished Capacity: Reduced ability due to age, illness, dependency, etc.
Varying levels of diminished capacity among individuals.
Factors determining diminished capacity (Model Rule 1.14 comment).

Normal attorney-client relationship may not be possible.
Adjusted approaches to decision-making authority.
Lawyer's role in decision-making increases due to diminished capacity, but client autonomy should still be facilitated.
Clients retain the right to make decisions to the extent they are able.
Lawyer maintains a "normal" relationship as much as possible (Model Rule 1.14(a)).
Adhere to duty of communication and act as advocate/agent.
Pursue client's objectives/interests as the client would define them if able.
Lawyer takes action based on their reasonable belief of the client's potential decisions.
Lawyer may need to advocate for a position not in the client's best interest to respect autonomy.
- Example: Opposing involuntary confinement despite believing it's beneficial.

Categorization:
- Normal circumstances
- Dangerous circumstances
- Emergency circumstances

Decisions do not pose an immediate danger to the client.
Example: In the Matter of MR case.
Factors to consider:
- Client's level of capacity.
- Seriousness of the decision.
- Gravity of the risk.
- Ease of changing the decision.
Maintain a typical attorney-client relationship and advocate for the client's wishes.

Attorney cannot maintain a typical relationship or risks are too high.
Protective action may be necessary if conditions in Model Rule 1.14 are met.
Hypothetical Example (based on a real case):
- Client with diminished capacity wishes to refuse medical treatment.
- Respecting autonomy vs. potential harm.
- Balance different factors, including respecting the client's autonomy.
- Consider asking court to appoint a guardian ad litem.

Different types:
- Guardian of the person: Makes all decisions for the person.
- Guardian of the estate: Makes decisions about the person's property.
- Guardian ad litem: Assists the court in making decisions.
Lawyer generally follows guardian's instructions, except:
- Representing the client against the guardian (e.g., terminating guardianship).
- Guardian instructs actions violating legal/fiduciary duties.
- Lawyer may seek relief or replacement of the guardian.
In the hypo, the lawyer advocated against the client's wishes instead of seeking guardianship; this was incorrect.
The lawyer should ask the court to appoint a guardian so that the guardian would be in a position to make decisions for the client and to make recommendations to the court based on what the guardian thought would be the best interest of the client.
Need to understand the differences between the roles of an attorney for a client with diminished capacity and the role of a guardian ad litem, and also the need to keep those roles separate.
The attorney advocates for the client's decisions; the guardian makes decisions for the client.
The attorney owes the client duties, including confidentiality; the guardian owes duties to the court, not confidentiality.
Illinois Rule: Serving as both lawyer and guardian is a conflict of interest in delinquency cases.

Illinois alternative in divorce cases.
A lawyer charged to advocate for the child's position
Can decide what is in the best interest of the client and then advocate for that.
Child representative advocates for the child's position, decides what is best.
The child representative owes his or her duties to the client, while a guardian ad litem owes the duty to the court.
May result in multiple representatives (lawyer, guardian, child representative).

Next lecture: Representing clients with diminished capacity under emergency circumstances.