03 October 2019

Providing legal advice for cognitively impaired and aging clients

Published on 03 October 2019

Australia’s aging population poses major demographic dilemmas for our social welfare system, urban planning and professional advisory services. Providing legal advice for a client facing cognitive decline is a challenging prospect, and one which Michael Perkins, Special Counsel of Nexus Law Group, is most familiar. Insights spoke to Michael about how lawyers might navigate the changing demands of aging clients ahead of the College of Law’s Professional Responsibility Symposium run in partnership with Nexus Law Group and with the support of the STEP Academic Community.

“For lawyers to work effectively in the ageing client sector they need to see themselves as in the client care business, not just purveyors of legal transactions,” explained Michael.

Qualifying a client as ‘competent’ 
This is one of the foremost issues facing lawyers. 

“Recognising whether or not you are dealing with an autonomous decision maker requires skills informed by neuropsychology, governance and estates practice,” said Michael. “It is a professional responsibility of all lawyers.”

The first step, advised Michael, is learning how to interview using open questions so as to allow evaluation of the client’s decision making ability.. According to recent research, about one in three people between the ages of 50 and 80 are likely to be affected by mild cognitive impairement (MCI). 

“As lawyers, we can normally assume the capacity of the client,” said Michael. “Lawyers need to be alert to clients not engaging sufficiently with briefings, a lack of proactivity, or lack of knowledge or insight about their situation.”

Posing well-framed questions can also be useful. For example, a lawyer might ask, “Would you be surprised that I think someone could try and attack or unwind what you are trying to do?”
“The reply of your client should give you a guide as to what to do next,” said Michael.”

Decision making ability is neither purely medical or legal issue
With Australia a signatory to the UN Convention on the Rights of Persons with Disabilities, it is crucial that lawyers are committed to respecting the will and preference of people experiencing cognitive impairment is crucial.

In a practical sense, this involves implementing a supported decision making methodology when dealing with clients whose autonomy of decision-making is in doubt. Substitute decision making instruments, such as powers of attorney and guardianship, may then be considered when no satisfactory measures of support for a persons decision making ability are available.

“These practical requirements must be concurrent considerations when dealing with the estate administration, wealth conservation and succession objectives of clients,” said Michael.

Central to this is knowing both the capacity and ability of your client at the start of the client relationship. In caring for and helping the ageing client, we have to care about their cognition.

“Isolate knowing the capacity and ability of your client as a separate issue to engaging with the client for a particular purpose,” said Michael. 

“Understand the perspectives of different professional disciplines (such as medical practitioners, accountants and financial planners) which may give a valuable insight into the decision making ability of a client. Decision making autonomy is neither purely a medical or legal issue. A blended interdisciplinary approach is needed to understanding the actual ability of a cloient..”

Michael emphasises a need to evolve beyond screening tools such as the Mini Mental State Exam (MMSE). Behavioral assessment, according to Michael, should be considered part of the client onboarding and management process. 

Risks to professional responsibility
Failing to identify when a client is experiencing cognitive impairment can pose major risks to professional responsibility.

“It may lead to a breach of our profession’s conduct rules,” warned Michael. “The client may not be able to appreciate and action your advice giving rise to complaint about not understanding the advice. The client may not be able to effectively resist the influence of others, which may benefit a third party and unreasonably damage the client.

“Professions need to take up the responsibility to deal with ageing clients as a matter of their professional practice, not just legal compliance,” said Michael. “Australian Consumer Law recognises special disadvantage. I think this gives all necessary legal impetus to prioritise the needs of cognitively impaired clients.”

Growth of MCI driven by aging population
“As Australia ages, the prevalence of MCI will only increase and so the frequency of clients not presenting as autonomous and competent will also increase,” said Michael. This presents an increased risk for both clients and their advisors.

“The starting point is to be able to recognise the attributes of an autonomous decision maker,” said Michael. This is the focus of training currently being developed by his colleague, Jane Lonie, and Wilson Learning.

“The Professional Responsibility Symposium gives us a chance to work out key responses to these problems, including recognising the need to establish cognitive responsive workplaces, workers, client outcomes, and public policy, law and regulation,” said Michael.

“We need to start thinking of our professional responsibility to the ageing of our client, not just their life stages,” explained Michael. “We can start by thinking of ageing as a land use problem, not just a health and welfare problem. As a profession we need to be engaged to not only mitigate intergenerational disadvantage but also facilitate the connection and sustainability of families and communities who need to consider the needs of people who are not decision makers of unconstrained autonomy.”