QUESTION: Attorney handled several matters for an elderly client, which included estate planning. Attorney has learned that the client is showing the signs of Alzheimer´s disease and is becoming increasingly unaware of the extent of the client´s financial resources and the consequences of the client´s actions or negligence in handling them. There is no family member or friend to intervene to protect the client´s interests. Attorney believes that the client needs a guardian. Is Attorney obligated to inform the probate court? Is it ethically permitted for Attorney to inform the probate court? What is Attorney to do in these circumstances? ANSWER: Rule 4-1.14, applies to the situation Attorney has described. Attorney may seek a guardian for Attorney´s client, as a last resort. Under the circumstances Attorney has described, Attorney may want to inquire whether a local social services agency could be called in for assistance to the client. It is possible that the need for a guardian would be identified in that manner. If Attorney believes that Attorney´s client is in danger, from the standpoint of health and physical welfare, Attorney should take prompt action to alleviate that situation, including seeking the appointment of a guardian. If Attorney´s primary concern relates to questionable financial or estate planning decisions, with which the client is requesting Attorney´s assistance, Attorney may decline to take the action requested. If necessary, Attorney may withdraw from further representation. Attorney may not inform the probate court of Attorney´s concerns and observations unless the situation has progressed to the point where Attorney is seeking the appointment of a guardian. If Attorney decides that this type of action is warranted, Attorney must only take the action to the limited extent necessary to protect the client.

QUESTION: Attorney represents a client who has suffered from brain injury. The client has been under the influence of various people. The client has asked Attorney for advances against an anticipated settlement or award. Subsequent to these influences, the client has indicated that Attorney is discharged. Attorney questions the client´s competence for various reasons described. May Attorney advance the funds? Must Attorney withdraw or may Attorney initiate a civil commitment proceeding? ANSWER: Rule 4-1.8(e) prohibits a lawyer from providing financial assistance to a client, other than advancing court costs and litigation expenses. Based on the information Attorney has provided, it appears that Rule 4 - 1.14, Client Under a Disability, would give the Attorney discretion to seek the appointment of a guardian or, if possible, a guardian ad litem. If Attorney believes that the client is capable of making a decision in the client´s own interests with regard to the question of discharging Attorney, Attorney may accept the decision to discharge without further action.

QUESTION: Attorney represents H and W as defendants in a personal injury case. W´s mental abilities are fine but H has Alzheimer´s Disease. H continues to function on a daily basis but H has no recollection of the incident leading to the lawsuit and there is some question as to his mental acuity. H has never been declared incompetent. Does Attorney have an obligation to seek a guardian ad litem for H? ANSWER: Based on the information provided, it does not appear that Attorney has an obligation under the Rules of Professional Conduct to seek to have a guardian ad litem appointed for H. However, because this question is very fact dependent and somewhat subjective, Attorney should review Rule 4-1.14 for guidance in this situation. Attorney should discuss the matter with H, to the extent this is feasible. This opinion does not address whether any statutory provisions may apply to this situation.

QUESTION: Attorney represented a client in estate planning who was previously competent but now appears incompetent. May Attorney represent client´s child in proceedings to have the client declared incompetent. This appears to be necessary for the client´s protection. May Attorney represent the child in incompetency proceedings and continue to represent the client in estate planning. If there is a conflict, can the client waive the conflict? ANSWER: Under Rule 4-1.14(b), Attorney may represent the child in a proceeding to have the former client declared incompetent. Attorney will not be able to continue to provide representation of any sort to the client once Attorney is representing a party seeking to have the client declared incompetent. In light of the fact that Attorney believes the former client to be incompetent, it will not be possible for Attorney to seek a waiver of the conflict from the client. Attorney should also consider whether there is a likelihood that Attorney will be a necessary witness in the incompetency proceedings in determining whether to represent the child in seeking to have the client declared incompetent. Attorney should consult Rule 3.7 regarding this issue.