33 Trial Lawyer • Winter 2023 See Capacity p 34 position to give medical advice but we have found it helpful to be able to recognize important patterns with dementia. Over half of physicians say they are not fully comfortable diagnosing dementia. Alzheimer’s Disease Facts and Figures, Alzheimer’s Association, https:// www.alz.org/alzheimers-dementia/factsfigures. It is important for the community to be watching out for atypical symptoms. After you determine your client may have dementia, it is important to determine what stage of dementia they are experiencing. It is more nuanced than this but you should inquire into whether they have mild, moderate or severe dementia, also referred to as early, middle or late-stage dementia. A dementia diagnosis is not sufficient to establish incapacity. In fact, they may meet the capacity requirements for many tasks into the later stages of the disease. Capacity threshold Generally speaking, a person is presumed to possess legal capacity unless they have been adjudicated as incapacitated. Van v. Van, 14 Or App 575, 578, (1973). To overcome the presumption, you will need to defer to the statutes and case law discussing the capacity requirements for the specific acts at hand. Capacity is often discussed in the context of a sliding scale. On one end we have testamentary capacity and on the other, the capacity to contract. Testamentary capacity There is a well-established body of law defining testamentary capacity. See Kastner v. Husband, 231 Or 133, 372 P2d 520 (1962), In re Phillips’ Will, 107 Or 612, 213 P 627 (1923).The personmust: 1) Be able to understand the nature of the act in which he or she is engaged. 2) Know the nature and extent of his or her property. This does not need to be exact. 3) Know, without prompting, the natural objects of his or her bounty. 4) Understand the scope of the provisions of the document. In Re Walter’s Estate, 163 P.2d 285,177 Or 382 (1945). Even if a testator suffers from dementia, there can be lucid moments where testamentary capacity exists. In re Provolt’s Estate, 175 Or. 128, 151 P.2d 736 (1944). Even with significant signs of incapacity, a person may have lucid intervals in which they would have testamentary capacity. Maybe the client is lucid in the mornings but as the day goes on, they become confused. When people have evolving capacity like this, you may need to work around their schedule. A “lucid interval” is defined as “[a] temporary restoration of testamentary capacity.” Gentry v. Briggs, 32 Or App 45, 573 P2d 322 (1978). Even individual's subject to guardianship can have testamentary capacity. ORS 125.455. Capacity to contract A person can enter into a contract if the person has the ability to understand the nature and effect of the act. Kruse v. Coos Head Timber Co., 248 Or 294 (1967). “The question is not whether [the party understands] the contract but rather whether [they are] capable of understanding it.” Id. The test of contractual capacity is measured at of the time of execution of the contract. Uribe v. Olson, 42 Or App 647, 651, 601 P2d 818 (1979). The capacity to retain counsel is linked to the capacity to contract. You do not need capacity to hire an attorney. ORS 125.300(3); ORPC 1.14(a). That said, to have an enforceable fee agreement with a client who has some degree of diminished capacity, the client would still need to meet the general standard of capacity to contract. There is a lot that happens between testamentary and contractual capacity. If you would like additional direction in determining levels of capacity, the ABA’s Capacity Worksheet for Lawyers is an excellent resource. ABA Commn. On L. and Aging, “Assessment of Older Adults with Diminished Capacity: AHandbook for Lawyers” 19, 2005. “CapacityWorksheet — Understanding Legal Capacity and Ethics,” David Godfrey and Charles Sabatino, Practice Guide, National Center on Law and Elder Rights (2018). If the client has capacity to proceed without a fiduciary, there is an obligation to maintain a “normal relationship” with the client. Hierschbeil, Helen, Impaired Clients: Challenging and Unique Ethical Considerations, Oregon State Bar Bulletin (May 2004). There are also a number of ethical considerations and unique limitations on your ability to withdraw as counsel. Id; Fucile, Mark, Helping Those In Need: Clients with Diminished Capacity, Multnomah Lawyer Ethics Focus (October 2022). When the client has no capacity If the client does not have capacity to navigate their claim, a guardian ad litem Your client has a story to tell. Hire a communication professional to help tell it.
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