What if a client is of diminished capacity?

Seeing a loved one work their way through any legal issue in Florida can be nerve-wracking. Your stress is sure to be compounded if that family member or friend suffers from a diminished capacity. The attorney-client relationship is already complex enough without having to deal with the concern that your loved one (either through trauma, inexperience or mental impairments) is unable to make sound decisions on their own. Their attorney must then maintain their obligations to them while ensuring that their best interests are understood and represented. 

Rule 1.14(b) of the American Bar Association's Model Rules of Professional Conduct state that if an attorney believes that a client's diminished capacity makes them unable to act in their own interests, they may consult with any other parties that are in a position to make those interests known. That may include you, other family members, your loved one's caregiver, or their primary care provider. The attorney may also push to have a conservator, guardian or guardian ad litem appointed if they believe it to be necessary. 

Where issues can often occur in working with a client with a diminished capacity is in the sharing of information. Your family member or friend's attorney may be able to disclose information that would normally be protected under attorney client privilege in such a case, but only to the extent that it helps in matters related to their representation. 

Special considerations should also be made before the attorney acts outside their normal scope. These include the degree which your loved one's capacity is truly diminished (e.g. if the impairment is temporary, it may be best to postpone action until they have recovered). Any extraordinary action should also only be engaged in when the potential exists for your loved one to experience serious physical or financial harm. 

No Comments

Leave a comment
Comment Information
Email us for a response

Tell Us About Your Case

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Contextual

Contact

Jacksonville Office
1300 Riverplace Boulevard
Suite 401
Jacksonville, FL 32207

Toll Free: 866-542-1996
Phone: 904-396-1996
Fax: 904-396-1991
Map & Directions

Miami Office
1395 Brickell Avenue
Suite 800
Miami, FL 33131

Phone: 305-200-8674
Phone: 305-200-8675
Fax: 305-200-8801
Map & Directions

West Palm Beach - By Appointment Only
301 Clematis Street
Suite 300
West Palm Beach, FL 33401

Phone: 561-832-5991
Fax: 561-832-5985
Map & Directions

Panama City Office
305 Cherry Street
Panama City, FL 32401

Phone: 850-481-1386
Fax: 850-640-1247
Map & Directions

Tampa Office
10150 Highland Manor Drive
Suite 200
Tampa, FL 33610

Fax: 813-314-2163
Map & Directions