Elon Law Professor Margaret Kantlehner authored the article, "Before Elvis Leaves the Building: Drafting a Will for a Client of Diminishing Capacity," for the Summer 2012 edition of the North Carolina State Bar Journal.
The article discusses how an attorney can ethically continue to provide representation for a client in drafting and executing a will when the attorney is aware of the client’s diminishing capacity.
“Instead of abandoning a client just when the client most needs a lawyer’s assistance, the lawyer can take practical steps to form a belief about the client’s capacity to work with the lawyer as required by the Rules of Professional Conduct, and to determine whether the client has sufficient capacity to execute a will,” Kantlehner wrote in the article.
She suggests various methods an attorney can use to assess a client’s capacity, including meeting in shorter sessions when the client is most lucid, meeting with the client alone and requesting the client seek a mental health professional’s opinion about their capacity if the attorney suspects it may be diminished.
“When a client of suspected diminished capacity requests that his lawyer assist him in drafting a will the lawyer should proceed cautiously,” wrote Kantlehner. “The lawyer should determine whether she believes the client is capable of maintaining a normal attorney-client relationship with the lawyer.”
Kantlehner is an associate professor of law at Elon Law and director of externships, preceptors and capstone leadership experiences. She also directs the Wills Drafting Clinic and teaches courses in elder law. Prior to joining the law school faculty she practiced law in Greensboro, concentrating in the areas of Estate Planning and Probate, Real Property, and Guardianship.
Click here to access an online version of the North Carolina State Bar Journal, Summer 2012 edition.