Reform that Understands Our Seniors: How Interdisciplinary Services Can Help Solve the Capacity Riddle in Elder Law
This Note suggests an interdisciplinary approach to assist in determinations of legal capacity. It also urges an amendment to the Model Rules and current law firm business models, so attorneys can better approach capacity challenges. While this Note does not presume to resolve the problems faced by capacity determinations, the purpose is to offer functional alternatives to the current working models. Part I reviews the Model Rules’ treatment of capacity issues, detailing attorneys’ conflicting ethical duties and the ambiguous methodology for capacity evaluations. Part II examines the customary processes that attorneys presently follow for seeking diagnostic evaluations and highlights their embedded potential for legal challenges. Part III calls for states to adopt an amended version of the Model Rules to allow for the full use of interdisciplinary services in client capacity evaluations. Additionally, Part III proposes several models that offer administrative guidance for legal capacity evaluations. These reforms would better shield elder law attorneys from malpractice liability while preserving the client’s autonomy and privacy.