While that can be accomplished in many ways, it is the attorney's duty to make a legal determination (not judicial, although this is sometimes necessary) of competence. Obviously, in cases like yours, doing so is critical due to competency questions.
A lawyer is obligated according to the rules of professional responsibility to exercise independent professional judgment and to render candid advice. In exercising independent professional judgment, the lawyer should not allow others to unduly influence and sway her opinions in a way that would compromise the quality of the representation.
It is the attorney's responsibility to determine legal competency of the person who will be signing documents. While that can be accomplished in many ways, it is the attorney's duty to make a legal determination (not judicial, although this is sometimes necessary) of competence.
The client has a right to discuss with the lawyer how they will pursue their objectives. However, the lawyer does not have to follow through with the client’s requests if the means by which the client wants to achieve his objectives are illegal.
[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is ...
A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by a real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.
These principles include the lawyer's obligation zealously to protect and pursue a client's legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.
It describes the sources and broad definitions of lawyers' four responsibilities: duties to clients and stakeholders; duties to the legal system; duties to one's own institution; and duties to the broader society.
The lawyer and client relationship, in particular, the duties owed by the lawyer to his or her client. This includes matters such as client care, conflict of interest, confidentiality, dealing with client money, and fees. The lawyer as an advocate, in particular, a lawyer's duties to the court.
Definition. Legal compliance refers to acting in accordance with the laws of a particular organization, company etc. while ethical responsibility is the choice to comply with the code of ethics of the particular organization, company etc.
Therefore, the way in which lawyers behave is fundamental to the way the law is administered. They give the law its quality in application and administration. Ethical obligations keep lawyers true to this task. It is not enough that they are honest and obey the law or even that they obey the conduct rules.
Importance of Legal Ethics Thus, having an enforced code of ethics is crucial in ensuring the credibility of the practitioners and legal system altogether. Often, lawyers and other legal professionals are faced with conflicting interests from the clients they are working for and their personal interests.
An advocate shall conduct himself with dignity and self-respect. It is the duty of an advocate to not influence and let the decision of court be free from influence by any illegal or improper means. An advocate should be dressed in the prescribed form before appearing in court.
The rules that govern attorneys state that a lawyer must possess and apply at least the minimum learning and skill “reasonably required” to handle a given matter. In simpler terms, a lawyer must have enough skill to:
If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced malpractice lawyer immediately for an evaluation of your possible rights and claims.
While lawyers don’t have to understand , or practice in, every area of the law, they are supposed to have at least a basic level of competence and knowledge about the areas in which they choose to practice. This includes an obligation to stay aware of changes in the law, or in the way courts (or businesses) function in the areas where the attorney represents clients.
As such, California elder law attorneys must be able to determine a senior’s legal competency in both physical and mental areas because of the serious consequences it can have for estate and long-term care planning. There are a variety of ways that attorneys evaluate their clients’ ability to make legal decisions.
This typically involves measuring the clients’ level of alertness, how well they understand information, and if there appears to be any level of confusion when explaining legal options and their consequences.
In the case of a previous relationship with the clients, the elder lawyer may also use prior knowledge of the clients’ values and wishes to determine if the clients’ current wishes seem out of place or may be the result of a diminished mental capacity.
In order to execute a durable power of attorney, a client has to have contractual capacity. Contractual capacity means that the person has the ability to understand the nature and effect of the act and the business being transacted. If the durable power of attorney contains gifting powers or if the document being executed by ...
It is simply a matter of does the client know who the natural objects of their bounty, the extent of their property, and the understanding that the will states how their property will be disposed of upon their death. Clients tend to think you really need to be with it in order to have testamentary capacity but in reality testamentary capacity is not a very high standard. In order to execute a durable power of attorney, a client has to have contractual capacity. Contractual capacity means that the person has the ability to understand the nature and effect of the act and the business being transacted. If the durable power of attorney contains gifting powers or if the document being executed by the client is making a gift of their property, then donative capacity should be evaluated as well. Donative capacity requires that the client understand the nature and extent of their property, the natural objects of their bounty, and the nature and effect of a gift.
If you determine the client has diminished capacity, the next step is to determine whether the client has the capacity required to proceed with whatever he or she came to see you about. Clients (or more commonly, client’s children) usually assume that the family doctor determines whether someone has capacity to sign documents or not. In practice, it is the attorney who ultimately makes that decision. That is not to say that medical records are not helpful or that the doctor should not ever be consulted, but a doctor’s opinion is not the end of your inquiry. It will not be the doctor who is ultimately on the hook for the documents that you prepare and allow your client to execute.
As a practical matter, you will not be consulting a psychiatrist before preparing estate planning documents for all of your clients who may not be firing on all cylinders. In cases where that will or trust you are preparing is likely to be challenged, a professionally prepared evaluation of testamentary capacity completed contemporaneously with the will can be a good way of papering your file. These fancy evaluations represent an additional cost to the client as they are not covered by insurance. In my area, this sort of evaluation is generally in the range of $1,200-$2,000. This expense may be well worth it to a client who is concerned about their estate plan being challenged.
Most doctors do not understand what constitutes contractual capacity or testamentary capacity. I have found that most doctors do not want to weigh in on capacity in the first place and sometimes make a mess of it when they do.
An evaluation by someone trained to determine whether a criminal defendant can stand trial is probably not going to be helpful (something I learned by way of a court ordered multi-disciplinary evaluation in a hotly contested guardianship case).
I have found that clients with dementia are very adept at covering their dementia. They will not want to admit that they don’ t know what a power of attorney does.
A lawyer should explain to a client that the client’s conduct would be unlawful. The lawyer must not recommend the illegal conduct, and may never instruct the client on how to break the law.
Importantly, the lawyer is responsible for informing the client of the applicable laws, and operating within the limits of, the laws. The client has a right to discuss with the lawyer how they will pursue their objectives. However, the lawyer does not have to follow through with the client’s requests if the means by which the client wants to achieve his objectives are illegal. In fact, the lawyer is under an ethical obligation not to assist a client in conduct that the lawyer knows is criminal or fraudulent.
Sometimes lawyers find their clients’ goals to be unpalatable. This does not mean that the lawyer may not take on the case. When a lawyer represents a client in a matter, this does not imply that the lawyer himself endorses the client’s positions. Of course, sometimes it’s more than just antipathy towards a client’s goals that prevent a lawyer from wanting to perform certain tasks. It may be due to the lawyer’s lack of time or lack of competence in a certain field of the law. In such cases, the lawyer would be ethically obligated to turn down the case.
From the outset of the case, the lawyer and client should determine the “scope” of the representation. They will set forth the goals of the representation. Some goals are short-term, such as closing on a piece of property, and sometimes they are long-term, as in providing ongoing advice for a corporation.
A lawyer is entitled to limit the objectives of representation, provided he consults with the client from the outset. What is most important is that this is all laid out on the table from the start with the client. Both the lawyer and the client must understand the scope of the representation when pursuing their goals together.
Usually when drafting a fee agreement for a client, a lawyer will set forth in writing the reason for the representation. This protects the lawyer and the client in the event of a dispute about either party’s obligations.
A lawyer is obligated according to the rules of professional responsibility to exercise independent professional judgment and to render candid advice. In exercising independent professional judgment, the lawyer should not allow others to unduly influence and sway her opinions in a way that would compromise the quality of the representation.