31 Trial Lawyer • Winter 2023 By Shannon Conley OTLA Guardian I remember this lovely, elderly client who visited our office early in my career. Let’s call her Daisy. She was walking down the hall, bright as sunshine, carrying on a friendly conversation, when she stopped a bearded colleague and asked in earnest if he was Jesus. Well… what now? Does Daisy have capacity to enter into a contract, including our representation agreement and any future settlement agreement? Will she be able to competently participate in discovery or mediation? Does she have the ability to stand trial? Is she able to manage sophisticated assets? As we all know, attorneys regularly have to exercise their judgment concerning a client’s capacity. This will not be changing anytime soon. The World Health Association says the U.S. is experiencing an increase in the median age due to declining fertility rates and rising life expectancies, which has been coined as “population aging.” In 2019, the number of people 60 years and older was 1 billion. This number is projected to increase to 1.4 billion by 2030 and 2.1 billion by 2050. The number of persons 80 years or older is expected to triple between 2020 and 2050 to reach 426 million. Id. Studies show that approximately 5% of people 65 and older have Alzheimer’s and 33.2% of people over 85 have dementia. Alzheimer’s Disease Facts and Figures, Alzheimer’s Association, https://www.alz.org/alzheimers-dementia/facts-figures. Considering the prevalence of neurodegenerative diseases in the later stages of life and this shift in the country’s population, dementia is likely to be a disease you will encounter on a professional level with some regularity. It is important to be able to recognize the symptoms and determine if the client has sufficient capacity to proceed individually. Unfortunately, the Oregon Rules of Professional Conduct do not provide a legal definition for capacity. Generally speaking, capacity is the ability to comprehend the nature of the transaction and to understand its quality and consequences. Krus v. Coos HeadTimber Co., 432 P.2d 1009, 248 Or 294, 85 Or Adv Sh 491 (Or 1967). The definition of capacity often varies depending on the nature of the decision or the act being undertaken. David Godfrey and Charles Sabatino, Understanding Legal Capacity and Ethics, National Center on Law and Elder Rights, July 2018, https://ncler.acl. gov/pdf/capacity%20ethics%20practice%20guide.pdf. You will need to determine if the client is likely suffering from neurodegenerative disease. If yes, what are the necessary capacity thresholds to proceed with the client individually? If your client is not meeting these thresholds, you may need a court appointed fiduciary to proceed with the case. Neurodegenerative Disease We all have small hiccups in our cognition. In some cases, it can be di f f icul t to di f ferent iate between dementia and age-related cognitive decl ine, s leep depr ivat ion, gr ief, depression or side effects to medications. Shannon Conley See Capacity p 32 Capacity: DO YOU KNOW IT WHEN YOU SEE IT? Individuals with dementia will often have new, persistent behaviors with little insight into how their behavior is experienced by others.
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