for a family member to become a conservator for a loved one, requiring that family member to get their own lawyer and go through an extensive and expensive process. If the client objects and doesn’t want a conservator, the probate court may send out a court visitor to assess the client’s capacities and report back to the court. Family members who want to become conservators usually have to become bonded to protect the value of the estate. This is often a significant barrier for many family members who don’t have or don’t want to spend (initially) their own personal financial resources. Professional conservators charge by the hour and also need to have their own separate attorney represent them — you as the original attorney for a now protected person, likely have a conflict of interest and can’t represent both the conservator and your client. A protected person’s estate can be drained paying the hourly cost of multiple professionals. I have struggled on cases knowing my client needs a conservator yet not knowing where to go to find one. Professional conservators I have worked with in Portland are class acts, but this is their profession and they are paid from the protected person’s estate. Get to know your client. Probably the most helpful thing I’ve done in these cases is get to know my client on a more personal level than my typical client. I have made a point of visiting some of my elder clients at their homes, learning about their family dynamics and connecting with them about something they know well. I recall one of my clients was an incredible artist and connecting with him about his art as well as some of our mutual favorite local artists helped me better understand how his mind worked. This same client got tired very easily and didn’t have a clear memory of things we had discussed the prior day if he was tired. I noticed and learned from a family member, that he often got extremely tired in the late afternoon or after 2 hours of being up and talking without a rest. During mediation, there was a pending settlement offer my client told me to accept, but I knew he wouldn’t be in favor of the deal the next day. I encouraged him to wait and advocated with the mediator and opposing party to keep the offer open. Sure enough, the client engaged more decisively in the morning and, with a few adjustments to the settlement offer, we were able to resolve the case. • An existing client gets in a car crash midway through the representation and sustains a head injury. It appears they have some long-term cognitive, processing and memory deficits. They have no family or close friends they trust to help them navigate the process. This scenario presents some different challenges than the first two because the relationship with the client, goals for the case and strategy considerations were all set prior to the client’s loss, or potential loss, of their capacity. You already know what they want and their goals were clear, but they have no helper or anyone to assist them and you’re not sure they are capable of understanding any agreements made in settlement or how to manage their finances if you can reach a settlement. Professional divorce coach. Once you discover a good one of these, you will want to use them in every case possible. My favorite coach recently worked with me on a case where my client had no family she trusted or could rely on to help her make important financial decisions See Clients With Diminished Capacity p. 50 49 Trial Lawyer | Summer 2024
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