Attorney ad Litem Ethics in Guardianships – Part 4

In several recent posts, we examined the role of attorneys ad litem in guardianship proceedings.  Specifically, we took a closer look at the reason they are appointed, the scope of their role as counsel for a proposed ward and some of their earliest steps in guardianships.  In this post, we discuss some of the practical and ethical considerations at play when the appointed attorney meets their client.

Assessing a proposed ward’s capacity is not simply a job for the judge in a guardianship.  Many of the individuals involved, including the attorney ad litem, must do this.  Thankfully, with a well-drafted Order of appointment, the attorney ad litem should have a head start.  He or she is able to review the doctor’s letter filed with the application and even supplement that information with access to the proposed ward’s medical records.

Depending on the proposed ward’s circumstances, the attorney ad litem may have access to a number of people that are very knowledgeable about the proposed ward’s past and current condition.  Doctors, nurses and social workers often play a significant role in a proposed ward’s life, and their input on assessing a client could be invaluable.  Psychologists, for example, tend to use standardized testing to measure cognitive or behavioral strengths or weaknesses.  A psychologist might even be further specialized in aging, mental health, forensics, brain behavior or even specialize in presenting medical records in a legal context, to judges or juries.

Early in the case, the rubber has to meet the road.  The attorney ad litem has to meet with the proposed ward and conduct a capacity assessment of him or her.  It is imperative to know if the proposed ward can meaningfully participate in the proceeding, or if the attorney ad litem will be going it alone.  Being observant, and knowing what to look and listen for are key skills.  When an attorney ad litem visits with a proposed ward, the attorney should be assessing capacity in several areas.

A person might have the capacity to do everything, most things, or only a few things.  Veteran guardianship judges across Texas often defer to national standards and considerations that are the products of much collaborative work by groups like the American Bar Association, the American Psychological Association and the National College of Probate Judges.  These groups encourage examining a client’s capacity from many standpoints, including (1) medical condition, (2) cognition, (3) everyday functioning, (4) values and preferences, (5) risk and level of supervision and (6) means to enhance capacity.

Apart from assessing the proposed ward with a view toward these areas, an attorney ad litem should closely examine their client’s support structure.  Most importantly, they’re looking to see if there is a support system, and where it may be broken or in need of repair.  Interviewing a proposed ward, particularly an older one, can be deceptively challenging.  Many times, adults with years of practice in coping and compensating skills, can present pleasant and healthy.  So long as they direct the interview, most people wouldn’t know that what they’re doing is masking their own incapacity.  Good attorneys ad litem examine and assess their clients from every angle, so that they are ably equipped to do the very best for them.