Some trusts and estates wizards believe the only challenge worthy of their attention is a convoluted tax problem or a multi-million dollar breach of fiduciary duty case. I beg to differ.
Many years ago, I represented a woman whom we’ll call “Jill.” Jill was elderly and obese. She never married and had no children. She was never employed. When I met Jill, she was living alone in the house in which she was born. The house was located in what, sadly, had become a “bad” part of town. In its day, many decades ago, the house and the vicinity were beautiful. The house contained what appeared to me to be a few pieces of museum quality furniture, but the house had fallen into disrepair. It was cold, dark, dilapidated and foreboding.
Occasionally, I asked Jill to allow me to arrange for her to move to a retirement community, which, as explained below, she could easily have afforded. I said she would receive regular, healthy meals, as well as excellent medical attention, and would reside in warm, worry-free and pleasant surroundings with nice companions and interesting activities. But, Jill would have none of it. She loved her house and rarely left it. She could have fairly been described as a hermit. Jill frequently told me she was born in that house and was going to die there. A neighbor would check in on her from time to time and bring groceries and similar items to her. That arrangement suited Jill fine.
Jill had a brother, whom we’ll call “Jack.” Like Jill, Jack never married and had no children. Jack and Jill’s only known or ascertainable relatives were each other. Jack and Jill lived together in the house. Jack handled all business and financial matters of the household.
Jack was a successful lawyer and a savvy investor. He invested in farmland and shares of stock in a local bank. The farmland and the shares grew substantially in value after he purchased them. Jack titled the farmland and the shares, as well as the house, in the names of Jack and Jill, as joint tenants with rights of survivorship.
Jack predeceased Jill. When Jack died, Jill had no relatives and no business or financial experience or ability. What Jill did have, though, was a large inheritance—large enough to require the filing of an estate tax return and payment of estate tax. The bank whose stock Jill now owned somehow became aware of Jill’s situation and that she would need a lot of help. The bank contacted me and directed me to Jill.
Jill was a sweet, innocent lady—having no knowledge of the ways of the world. She didn’t even understand the necessity to pay routine household bills. Before I became Jill’s lawyer and, among other things, got her in the habit of paying bills, the real estate taxes on the farmland became delinquent, and it was sold at auction. Although Jill had the right under state law to redeem the farmland by paying the delinquent taxes, the scoundrel who had bought it at auction showed up at her door bearing a dozen red roses and convinced her not to redeem.
I helped Jill navigate her way through Jack’s estate tax proceedings without incident. I also worked with Jill to establish an estate plan. When I asked Jill to whom she wanted to leave her estate, she replied she would leave everything to me. I told Jill I was flattered and honored she would make such a generous gesture but that I couldn’t accept. Eventually, Jill expressed fondness for a church in the neighborhood, and so we made the church her residuary beneficiary. Since Jill had no one else, she named me as personal representative under her will, trustee of her revocable trust and agent under her property, business and financial matters and health care durable powers of attorney. Never before and never since have I taken on the role of agent under a non-relative’s health care durable power of attorney.
When I arrived at Jill’s home for a visit shortly after her estate-planning documents had been signed, Jill was dressed in a flowing gown and sitting in an old, sagging upholstered chair from which she could have stood up only with great difficulty. The chair’s stuffing was protruding through large holes. Directly in front of Jill sat a large gas heater with an open flame. The heater was blowing Jill’s gown and the old chair’s stuffing. The immediate, life-threatening danger to Jill was obvious. I urged Jill to allow me to arrange for her to move to a retirement community. I said I could engineer a stress-free move that day. Again, however, Jill refused my offer. She wasn’t going to leave the only home she’d ever known.
At that moment, I understood I had a very serious dilemma on my hands. On the one hand, Jill, a presumptively competent adult, was making a choice regarding how she wanted to live. It was an objectively dangerous choice, but didn’t she have the right to live dangerously if that was her free and unimpaired choice? Her desire to remain in her home was intense and consistent. On the other hand, although Jill hadn’t been adjudicated as incapacitated and disabled, wasn’t Jill’s desire to sit in close proximity to an open flame inside her house pretty strong evidence that her mental acuity was at least to some degree diminished? I was torn between respecting my client’s wish to remain in her home and taking action, in my capacity as agent under her durable powers of attorney, to relocate her to a comfortable, safe place in which she could live out her remaining days.
Rule 1.14 of the Model Rules of Professional Conduct1 addresses this situation. Rule 1.14 provides in pertinent part as follows:
Client With Diminished Capacity
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
Under Rule 1.14, it’s clear that a lawyer’s duty to his client doesn’t end if and when the client’s capacity is diminished. The overriding themes of Rule 1.14 are that the lawyer should strive to maintain a normal client-lawyer relationship but take reasonably necessary protective action when the circumstances described in paragraph (b) are present.
Faced with the most difficult decision of my career, I elected to take action. I contacted the state agency responsible for addressing issues involving seniors. The agency’s representatives, on inspecting Jill’s home and living conditions, agreed Jill shouldn’t continue living in such an environment. I explained that Jill had substantial financial resources and could live very comfortably and safely but chose not to. The representatives failed, as I had many times before, to convince Jill to move to a nice retirement facility. Jill wouldn’t be relocated voluntarily. Accordingly, the representatives, with my approval in my capacity as agent under Jill’s durable powers of attorney, contacted an ambulance service and the local police department. Jill was forcibly restrained and removed from her home. I will never forget the look on her face as she was carried out of the house. Had I made the “right” decision? Had I betrayed a client?
While this decision was gut-wrenching, I’m confident, with many years’ reflection, I did what had to be done and what was clearly justifiable under Rule 1.14. Jill could have resented me but would live the rest of her life in a comfortable and secure location. Had I left Jill in her house, she could have died horribly in a house fire, and the fire could have spread to adjacent houses and injured or killed others.
This story has a happy ending. Jill soon came to appreciate what I had done and why my decision was truly best for her. She lived a few years longer and was well cared for and contented.
1. The Model Rules of Professional Conduct were first promulgated by the American Bar Association in 1983 and have been amended numerous times. As of today, the Model Rules have been adopted in whole or in part by 49 states, the District of Columbia and four territories.