By Chris Everett, Elder & Disability Law Clinic Student, Fall 2017

The presumption that a person is competent is well settled in the American legal system. However, in elder law, this presumption oftentimes needs to be challenged. Many elder law attorneys deal with clients who seem to be disoriented and uncommunicative, which gives rise to the question of whether or not that client is truly competent enough to be making legal decisions. On its face, competency seems to be a very simple question. Most people see the question as black and white, with an obvious yes or no answer. The reality, however, is something far more complex. Competency exists on a continuum. Clients may have the ability to make some decisions but not others. As such, it becomes difficult for the elder law attorney to determine whether or not their client is truly competent enough for the task at hand.

Thankfully, various ways exist to ensure that the elder law attorney is not mistaking some of the common disabilities of old age with the symptoms of legal incapacity. It is important to structure each interview with a client in an environment that maximizes the capacity of the client. Interviews with the client should be conducted in a stress free environment. For some, this could mean meeting with the client in the comfort of their own home. It is important to speak slowly and succinctly, while at the same time maintaining a level of professionalism that allows the client to feel respected. In addition, meetings should be scheduled during times that are comfortable for the client. Meeting earlier in the day can help to ensure that the client is mentally sharper and more alert, helping to increase the productivity of the meeting.

Attorneys should develop and follow a consistent and deliberate process to check their clients for capacity. Questions to the client should be posed in a way that allows them to respond in depth. This allows attorneys an opportunity to check their client’s ability to articulate reasoning behind his or her decisions, as well as their ability to appreciate the consequences of their decisions. It is important that attorneys are not tricked by slow responses from their clients, or by requests to repeat their questions. A client with a diminished capacity is not necessarily incompetent. On the contrary, clients with diminished capacities often have the ability to understand, think about, and reach conclusions about matters affecting themselves. It is therefore imperative that attorneys take the time to familiarize themselves with the techniques used to determine the level of competency in their clients.

Deeming a client to be incompetent is not a decision that should be made lightly. One consequence of this could be the appointment of a guardian to the client. This appointment would cause the client to lose his or her right to make legally binding decisions, to vote, to own property, and to make medical decisions. In a sense, the appointment of a guardian is one of the most restrictive things that could happen to an individual. With this in mind, an attorney should not find a client incompetent unless it is absolutely necessary. Ultimately, it is this responsibility that makes the techniques and understanding of competency so important for an elder law attorney.