One of the most sensitive and complex challenges Elder Law attorneys face is working with clients who have been diagnosed with dementia. Whether it's early-stage Alzheimer’s or another cognitive impairment, attorneys must skillfully balance compassion, legal ethics, and the need to take action—often under tight timelines.
In Episode 50 of The Elder Law Coach podcast, we addressed this exact issue: How do you assess legal capacity, and what do you do when a client’s diagnosis casts doubt on their decision-making ability?
This post breaks down that conversation into practical guidance you can use in your Elder Law practice.
Understanding Legal Capacity vs. Medical Diagnosis
First and foremost, it’s important to remember: a medical diagnosis of dementia does not automatically mean a person lacks legal capacity.
Capacity is decision-specific and time-specific. A client may be able to:
- Sign a will but not create a complex trust.
- Understand a power of attorney document in the morning but struggle by late afternoon due to “sundowning.”
- Handle some personal decisions but not financial ones.
As attorneys, we are not medical professionals—but we are responsible for ensuring the client understands what they’re signing and the consequences of their decisions.
Red Flags That May Indicate Capacity Issues
When meeting with a potentially impaired client, watch for:
- Difficulty following basic explanations.
- Inconsistent answers or sudden confusion.
- Heavy reliance on a caregiver to speak for them.
- Parroting back your words without showing understanding.
If you see these red flags, it doesn’t mean you can’t proceed—it means you need to proceed with caution.
When and How to Conduct a Capacity Assessment
If you’re unsure about a client’s capacity:
- Document your observations. Include the date, what was discussed, and how the client responded.
- Ask simple, open-ended questions: “Tell me in your own words what this document means.” Their ability to articulate basic understanding is key.
- Consider involving a physician. A letter from the client’s doctor stating they are capable of understanding the legal action can provide you cover—but should not replace your own judgment.
- Delay if necessary. If the client is tired, anxious, or in an unfamiliar setting, reschedule the meeting for a better time.
Remember, it’s better to postpone and ensure clarity than risk future litigation or ethical complaints.
What If They Don’t Have Capacity?
If the client clearly lacks capacity, your role shifts. You may need to:
- Work with the person named in a valid power of attorney (if one exists).
- Help the family pursue guardianship or conservatorship.
- Identify legal options to preserve assets or apply for Medicaid under a substitute decision-maker.
These situations can be heartbreaking, especially when families come to you too late. But your role is to minimize harm and protect the client’s rights, even when full autonomy isn’t possible.
Educating Clients and Families on Early Planning
The best defense against capacity-related legal issues is early planning. In your marketing, seminars, and consultations, emphasize:
- The urgency of creating powers of attorney before a diagnosis.
- The value of having a well-crafted estate plan long before crisis strikes.
- The risk of delay: Without early action, legal costs, family conflict, and court intervention increase dramatically.
Final Thoughts: Be the Calm in the Storm
Clients with dementia—and their families—are often overwhelmed, scared, and unsure who to trust. By approaching these cases with compassion, clear protocols, and careful documentation, you become not just a lawyer, but a trusted guide through one of life’s most challenging transitions.
Whether you're assessing capacity for the first time or handling a guardianship proceeding, your work matters deeply. Keep the client at the center, trust your instincts, and always document, document, document.
