ESTATE PLANNING FOR THE INCAPACITATED CLIENT
George L. Cushing and Amiel Z. Weinstock
Kirkpatrick & Lockhart Nicholson Graham LLP
Estate planning for persons who have become incapacitated is an increasingly important
area due to the increasing life expectancies of our clients. Increased age carries an increasing
risk of diminished or lost legal capacity due to a variety of causes. Fortunately, legislation
authorizing the use of powers of attorney which survive a client’s incapacity and the use of
health care proxies so that medical decisions can be made for the treatment of an incapacitated
client, both without recourse to the probate court, permits a significant amount of planning to be
done on behalf of incapacitated clients by others selected by them prior to the loss of capacity.
There are also statutory procedures for implementing estate planning changes on behalf of an
incompetent client where the opportunity for advance planning no longer exists.
This outline summarizes the various estate planning mechanisms available to deal with a
client’s future or existing incapacity in Massachusetts.1
A. Key Questions:
1. What do the existing documents say?
2. Is there a Health Care Proxy? Durable Power of Attorney? HIPAA
3. Does the Durable Power of Attorney nominate a guardian? Is the
nomination to be a guardian of the person and the estate?
4. Is the nominated guardian still suitable? Is it the spouse? Is the spouse
still alive? Is he/she well enough to serve?
5. Has client been declared incompetent?
6. Does the Power of Attorney allow for making gifts? To individuals? To
This outline will not discuss Medicaid Planning which, although a very important option for an
incapacitated client, is beyond the scope of this course.
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II. ADVANCE PLANNING TO PROVIDE FOR THE EVENT OF INCAPACITY
A. Avoiding Guardianship
1. Try to anticipate incapacity.
2. Ascertain client’s wishes; determine the objects of their bounty.
3. Establish appropriate domicile or residency (if necessary).
4. Determine whether client has “testamentary capacity” (M.G.L. c. 191 §3).
a) At the time of execution decedent had “a general understanding of
the nature and extent of her property” and an “ability to carry in
her mind the persons who would naturally have some claim to her
remembrance.” Wellman v. Carter, 286 Mass. 237 (1933)
B. Durable Financial Powers of Attorney
1. M.G.L. c. 201B authorizes a principal to designate another person as his
attorney-in-fact to act on his behalf in the event that the principal becomes
disabled or incompetent.
2. Presently exercisable power v. “springing power.”
3. Despite the existence of a power of attorney, there may be reasons why
the appointment of a guardian or conservator may be necessary or
a) Note that the principal is authorized to nominate the person or
persons whom he or she would prefer be appointed as guardian or
conservator in the event that the appointment of a guardian or
conservator is necessary or desirable. See, G.L.c. 201B §3(b).
b) If a guardian or conservator is appointed for the principal, the
attorney-in-fact becomes accountable to the guardian or
conservator. G.L. c. 201B §3. That section also authorizes the
guardian or conservator to revoke or amend the power of attorney.
4. Scope of the powers is undefined, but it is generally believed that an
attorney-in-fact may create and/or trusts on behalf of the principal and
make gifts of part or all of the property of the principal, either in trust or
outright, to those persons whom the principal wishes to benefit, if the
power of attorney expressly so provides.
5. A power of attorney which expressly authorizes the attorney-in-fact to
establish or amend trusts and to fund those trusts with the principal’s
property may be used to make or correct a complete estate plan for an
incompetent principal, including establishing or modifying marital
deduction arrangements or trusts designed to use the principal’s
exemption from GST tax.
6. It does not appear legally possible for an attorney-in-fact to make a will
on behalf of the principal, even if the power so provides.
7. If the power will be needed to convey real estate, be sure to execute
multiple copies – the original will often be required to be filed at the
registry with the deed (see Exhibit A):
a) Quitclaim Deed executed by attorney-in-fact
b) Affidavit under M.G.L. c. 183 §5B (to be used if original DPOA is
c) Trustee’s Certificate Pursuant to Chapter 508 of the Acts of 2002
(to be filed in lieu of the trust document when the transfer of the
property is to the revocable trust).
The better practice with respect to the power of sale contained in a DPOA
is to actually make specific reference to the property owned by the
principal – makes for cleaner title. Alternatively, you may also use
language like: “any real property now owned or hereafter acquired”.
8. The attorney-in-fact is a fiduciary and is responsible to the principal for
acting solely in accordance with the principal’s instructions/wishes.
9. Be cautious that the possession of the power to make gifts can give rise to
the possession or release of a taxable general power of appointment by the
a) No problem when the principal is competent, as a “joint power”,
because the powers are “exercisable only with the consent or
joinder of the creator of the power,” see Reg. §25.214-3(b)(1) and
b) Does the incapacity of the principal change this clear tax result?
c) The Service has never taken the possession in any published ruling
or litigated case that the attorney-in-fact will be treated as the
holder of a general power of appointment.
d) It is advisable to limit the scope of the power of the attorney-in-
fact to make gifts.
e) Common limitations include:
i) Excluding the attorney-in-fact as a permissible donee (to
eliminate the tax problem);
ii) Limiting authority to make gifts to prescribed dollar
amounts (such as the available annual gift tax exclusion);
iii) Establishing an additional power of attorney using an
unrelated or professional person as attorney-in-fact and
authorizing gifts on behalf of the client only in this power
of attorney (but permitting family members to act as
attorney-in-fact to exercise authority in day-to-day financial
matters under separate, contemporaneous powers of
C. Massachusetts Statutory Custodianship under G.L.c.201C
1. Massachusetts G.L. c. 201C authorizes an individual to establish a
“statutory custodianship trust” by naming another person or entity to act
as “statutory custodianship trustee”. Upon acceptance by the designated
trustee, a trust is thereby established for the benefit of the transferor and
the transferor’s family as provided by the statute.
2. G.L.c. 201C grants the trustee the “statutory optional fiduciary powers
conferred under G.L. c. 184B and “such additional rights and powers as
the transferor may provide by written instrument” (although no such
instrument is legally necessary in order to create the custodianship).
3. During the transferor’s lifetime, income and principal are to be applied to
or for the benefit of the transferor and his family “as may be necessary for
[their] comfortable and suitable maintenance and support” in accordance
with the principles applicable to a conservator. G.L.c. 201C §2
4. Upon the transferor’s death, the remaining property in the custodianship
trust is required to be paid over to the transferor’s estate.
5. From a practical point of view, the statutory custodianship’s advantages
are that the transferor can create a trust for his/her own benefit (and for
the benefit of the immediate family) and thereby empower another,
chosen by the transferor, to manage the transferor’s assets without a court
appointment and without having to prepare a formal trust instrument. The
primary disadvantage is that probate court supervision is only avoided
during the transferor’s lifetime; at death the custodianship property reverts
to the transferor’s estate and probate administration will be needed to
dispose of the remaining property of the transferor at that time.
D. Revocable Trust
1. Better choice with respect to management of the clients financial affairs in
the event of incapacity since the revocable trust may provide for the
disposition of all of the client’s property not only during the client’s
lifetime but also after the client’s death and may confer broader powers of
management on the trustee than would be afforded by use of the statutory
2. A revocable living trust, which is often used as the primary dispositive
instrument for the disposition of a client’s property after the client’s death,
usually contains dispositive provisions which will be effective during the
client’s lifetime if the revocable trust is “funded” and will permit
distributions to or for the benefit of the client, and, in the event of the
client’s disability, to members of the client’s family (and, possibly, other
named beneficiaries as well).
3. The trust must be executed while the client is competent (although
amendments may be made by an attorney in fact if the power of attorney
and the trust instrument so permit). Funding may occur while the client is
competent or, in the event of the client’s incapacity, the attorney-in-fact
acting under a power of attorney which authorizes the attorney-in-fact to
“fund” the trust may do so by transferring the client’s property to the
4. The funded revocable living trust will be subject to the claims of the
client’s creditors (see State Street Bank & Trust Co. v. Reiser, 7
Mass.App.Ct. 633 389 N.E.2d 768 (1979) and assets held in the trust are
probably subject to the elective rights of the client’s spouse, if such
spouse survives the client, under G.L. c.191§15. See, e.g. Sullivan v.
Burkin 390 Mass 864, 460 N.E.2d 572 (1984).
5. The trust assets can be used, in appropriate circumstances, to make or
continue lifetime gifts on behalf of the client in the event of incapacity, so
long as all of the donees are named as eligible beneficiaries of the trust.
6. The use of a funded revocable trust has no tax consequences for the client.
a) Grantor trust during the client’s lifetime.
b) Can make taxable gifts from the trust.
c) Trust property is includable in the client’s gross estate for federal
and Massachusetts tax purposes.
7. Can avoid probate.
8. Disadvantage to the use of a funded revocable trust is the Trustee’s fee.
a) Comparable to the charges made by mutual fund companies for the
management of mutual fund portfolios.
b) Once the client has become incompetent, some cost will be
incurred for managing the client’s property in any event.
E. Massachusetts Health Care Proxies
Chapter 201D of the Massachusetts General Laws, enacted in December 1990,
provides statutory authority for the execution of health care proxies. The new law
authorizes the appointment of an agent for the purpose of making health care
decisions in the event of the principal’s incapacity and explicitly defines the
permissible scope of the power conferred. The law does not invalidate powers of
attorney for health care decisions executed prior to its enactment.
1. Execution of Health Care Proxies.
G.L.c. 201D provides a means by which an adult person may appoint one
or more agents for the purpose of making health care decisions in the
event of incapacity. The procedural requirements of the new law are well
within the authority granted to the states under the Supreme Court’s
decision in Cruzan u. Director’s Missouri Department of Health, 58
U.S.L.W. 4916 (June 26, 1990).
The law explicitly authorizes the principal to grant an agent powers
beyond those guaranteed by the U.S. Constitution as interpreted in
Cruzan. See Id. at 4922, footnote 12.
2. Summary of G.L. Chapter 201D.
a) Section 2: An adult person may designate another adult as his or
her agent to make health care decisions on his or her behalf in the
event of incapacity. The person making the designation, referred to
as the “principal”, must sign the document in the presence of two
subscribing witnesses (neither of whom may be the designated
agent). The witnesses must affirm that the principal appears to be
an adult, is of sound mind and is under no constraint or undue
influence. The principal may designate an alternate person to serve
as agent when the primary designee is unavailable, unwilling,
incompetent or disqualified from making a timely decision
concerning the principal’s health care.
b) Section 3: The designated agent may not be affiliated with the
facility treating the principal unless that agent is related to the
principal by blood, marriage or adoption.
c) Section 4: The health care proxy must identify the principal and
the agent, indicate the principal’s intent to grant authority to the
agent to make health care decisions, and describe the limitations, if
any, on the extent of the agent’s power. The proxy must also
indicate that the agent’s authority is to become effective if and
when the principal lacks capacity to make health care decisions.
d) Section 5: The agent’s authority is commensurate with the
authority the principal would have if competent, unless limited by
the health care proxy. The agent should exercise his or her
authority in accordance with the agent’s assessment of the
principal’s wishes if those wishes are known and if not, in
accordance with the principal’s best interests, as determined by the
agent. The agent is also granted access to confidential information
concerning the principal’s health. The agent’s authority takes
priority over the authority of others to the same extent that the
principal’s authority would do so, except as limited by the proxy or
by court order. The health care provider is required to comply with
the agent’s requests, subject to any limitations in the proxy and to
contrary court orders.
e) Section 6: The principal is considered to be incapable of making
health care decisions when unable to make or communicate those
decisions. This determination is to be made by the principal’s
attending physician according to accepted medical standards. The
attending physician’s determination must be in writing and must
include the cause and the nature of the incapacity, its extent and its
probable duration. If the incapacity is due to mental illness or
developmental disability, the attending physician must have
specialized training in diagnosing those conditions or must have
consulted with one who has such training.
The determination of incapacity to make health care decisions
must be entered on the principal’s permanent medical records by
the attending physician. A physician who is also the designated
agent may not make this determination.
Once a determination is made that the principal lacks capacity to
make health care decisions, notice of the determination must be
given to the principal if the principal is able to comprehend the
determination. Notice must also be given to the designated agent
and to the director of any mental health care facility which the
principal is in or from which the principal has been transferred. If
the principal objects to the determination, the principal’s objection
prevails unless a court orders otherwise. If the attending physician
decides that the principal has regained his or her capacity to make
health care decisions, the agent’s authority ceases.
f) Section 7: The health care proxy is revocable by (1) any act
evidencing to the agent or to the health care provider the
principal’s intent to revoke, (2) the principals execution of a
subsequent proxy, or (3) the principal’s divorce or legal separation
from a designated agent. The principal’s capacity to revoke is
presumed in the absence of a court order to the contrary.
g) Section 8: Neither a health care provider relying in good faith
upon instructions of an agent nor an agent acting in good faith will
be held liable for decisions made pursuant to the health care proxy.
h) Section 9: The costs of health care requested by the agent are
borne as though requested by the principal.
i) Section 11: A proxy executed in another jurisdiction in
compliance with that jurisdiction’s laws is valid subject to the
physician’s or facility’s right to decline to follow the agent’s
j) Section 12: the Health Care Proxy legislation shall not be
construed “to constitute, condone, authorize, or approve suicide or
mercy killing, or to permit any affirmative or deliberate act to end
one’s own life other than to permit the natural process of dying.”
k) Section 13: The attending physician is explicitly authorized to
provide for the principal’s comfort, to alleviate pain and to provide
“non-artificial oral feeding.”
l) Section 14: A physician may decline to follow the agent’s
directions if to do so would be contrary to his or her morals or
religion; to decline, the physician must arrange for the principal’s
transfer to a physician (or facility) who will honor the agent’s
directions or seek judicial relief.
m) Section 15: Similarly, a private facility may decline to follow an
agent’s directions based on an adopted policy expressly based on
religious beliefs if the facility could decline the same request if
made by the principal, if the principal or agent was informed of the
policy prior to admission if reasonably possible, and the principal
is transferred to a facility willing to honor the request or the
facility seeks judicial relief.
n) Section 16: The law does not make the health care proxy the
exclusive means for empowering an agent to make health care
decisions. If a health care proxy has not been executed, a health
care provider may still rely upon the informed consent of
responsible parties acting on behalf of incompetent or
incapacitated principals to the extent permitted by law. The new
law does not invalidate previously executed powers of attorney
delegating the authority to make health care decisions to the
o) Section 17: A health care provider, the principal’s conservator, the
principal’s guardian, family members, close friends or the
Commissioner of Public Health may bring suit with respect to the
validity of the health care proxy, or to remove the agent or
override the agent’s decisions in some circumstances. The probate
court has jurisdiction over disputes arising under 201D. Mass.
Gen. Laws Ch. 215, § 3.
3. Health care proxies contained in durable powers of attorney executed prior
to enactment of the new law.
While G.L.c. 201D explicitly states that it does not invalidate powers of
attorney delegating authority to make health care decisions executed prior
to the enactment of the law, it makes no explicit reference to the
formalities which may be required for effectiveness of those previously
executed powers. The Cruzan case suggests, nonetheless, that such powers
may be “valid under common law” since the authority of a person to
confer such “power” on another is constitutionally guaranteed.
Nonetheless, where an existing health care power was not executed in
compliance with the rules of c.201D and the principal is still competent, it
would seem prudent to execute a health care proxy in accordance with
4. Living Wills.
Since the health care proxy is intended to effectuate the principal’s wishes
regarding medical treatment, it is appropriate for the health care agent to
take into account the provisions of any living will executed by the
principal, since a living will normally expresses the person’s wishes
regarding medical treatment in terminal cases.
The terms of the living will may be included in the health care proxy so
that the principal’s wishes and the authority to act to carry them out are
contained in one document. Alternatively, the wishes may be expressed in
a separate “living will” which would provide assurance of privacy and
would permit the health care agent to take into account these wishes
(assuming that the agent will have access to the executed living will) in
making health care decisions without risk of being second-guessed by
F. Incapacity of a Fiduciary
1. Mechanisms for Removal/Replacement of Trustees.
a) Term of Office.
A trustee may be appointed for a fixed term of years or until a
stated age is reached. At the end of the term or at the stated age,
the trustee must be “reappointed” or the appointment as trustee
“reconfirmed” by some group (such as the beneficiaries eligible to
receive distributions, or a majority of them). If a stated age is used,
periodic confirmation or reappointment should be required
The trust instrument may provide that an individual trustee may be
deemed to have resigned in the event that such individual becomes
c) Removal by Beneficiaries.
Where removal by beneficiaries is to be used, care should be used
in drafting the removal powers to avoid adverse tax consequences,
as described below.
d) Use of a “Trust Protector.”
The trust protector is usually an individual in whom the trust’s
settlor has confidence and who is not a beneficiary of the trust.
The protector is thus a fiduciary of sorts, although the nature and
extent of the protector’s fiduciary duties are not well-defined.
Using a protector to remove and replace trustees avoids the
potential tax problems associated with removal and replacement
by the trust beneficiaries. If a protector is to be used, careful
thought should be given to the nature and scope of the powers to
be granted to the trust protector so that the intended role to be
played by such person is clearly spelled out in the instrument.
2. Tax Considerations Associated with Trustee Removal Powers.
Where the trustees are granted broad discretion to distribute income and/or
principal to the beneficiary or to and among a class of beneficiaries,
Treasury rulings require that the trustees having the power to exercise
discretion be “independent” of the eligible beneficiaries and have no
financial interest in the trust corpus in order to avoid adverse estate tax
In Rev. Ruling 95-98, 1995-2 C.B, 191, the Service ruled that the power to
remove a trustee who has broad discretion over distributions of income
and principal would not be considered a general power of appointment
under §2041 if exercisable by persons who are eligible to receive
distributions from the trust, so long as the trustee being removed has no
financial interest in the trust and is not a “related or subordinate person”
with respect to the beneficiaries of the trust within the meaning of §672(c),
and that any successor trustee appointed by the beneficiaries meet similar
The change in position occurred as a result of taxpayer’s victory in the
Removal powers can be employed in all trusts to assure that trustees who
are for any reason no longer suitable to act as trustees can be replaced
without adverse tax consequences to the holder of the power.
Estate of Helen S. Wall v. Commissioner, 101 T.C. 300 (1993)
III. ESTATE PLANNING FOR THOSE WHO ARE INCAPACITATED
A. Guardianship and Estate Planning Proceedings
1. M.G.L. c. 201 §38 provides the means for an estate plan to be established,
implemented, or modified on behalf of an incapacitated client (the
“ward”). This statute permits a duly appointed guardian or conservator,
including a temporary guardian or conservator, to petition the probate
court for authority to:
"take such action, or to apply such funds as are not required for the
ward’s own maintenance and support, in such fashion as the court
shall approve as being in keeping with the ward’s own wishes so
far as they can be ascertained and as designed to minimize insofar
as possible current or prospective state or federal income, estate
and inheritance taxes, and to provide for gifts to such charities,
relatives and friends as would likely be recipients of donations
from the ward."
2. The statute expressly permits the court to authorize:
a) Making gifts;
b) Conveyance or release of the ward’s contingent interests in
property, including marital rights or interests in joint property;
c) Exercise or release of powers held as donee of a power of
d) Exercise of options to purchase securities;
e) Making elections and/or changing beneficiaries on life insurance
or annuity policies;
f) Surrendering life insurance or annuity policies for their cash value;
g) Electing against the will of a deceased spouse;
h) Renouncing or disclaiming any interest in property acquired by gift
3. Although not expressly permitted by statute, the ward’s guardian or
conservator should also be able to change the beneficiary on the ward’s
retirement benefits or Individual Retirement Accounts, if otherwise
4. Burden is on the petition to prove that the proposed ward is incompetent;
a person is presumed competent unless shown to be otherwise.
5. The statute requires notice to all persons interested and the probate court
will customarily appoint a guardian ad litem to assure that the proposed
plan is in accordance with the ward’s intentions. The persons interested
will normally include the ward’s spouse and/or heirs presumptive, as well
as any individuals or charitable organizations named in the ward’s
previous estate plan(s), if any.
6. The guardian, who is appointed by the Probate Court, must give bond, file
an inventory and file accounts on a periodic basis.
7. Although the statute does not authorize the court to permit the guardian or
conservator to make a will on behalf of the ward, see Strange v. Powers
358 Mass. 126 (1970), Matter of Jones 279 Mass. 826 (1980), the creation
and funding of revocable and/or irrevocable trusts by the
guardian/conservator may be authorized by the court without being
deemed to be a testamentary disposition, even though the legal
consequences are virtually the same. See Matter of Jones, supra.
8. Estate planning under c. 201 §38 can be used to correct tax inadequacies
or errors in the ward’s existing estate plan, including tax mistakes, such
a) To establish or amend trust arrangements to assure full utilization
of the ward’s GST tax exemption;
b) To add provisions to a revocable trust which are needed to make a
marital trust a Qualified Domestic Trust under IRC §2056A;
c) To correct defective provisions in a marital trust arrangement to
assure qualification for "QTIP" treatment under §2056(b)(7).
9. It may not be possible to correct all “tax” errors. See, e.g. Matter of
Murray, 408 Mass. 731 (1990).
M.G.L. c. 201 §38 was amended shortly thereafter to allow an
estate plan to be changed even without a showing of "tax savings."
10. Should indicate that requested action is consistent with the
intentions of the ward as best as they can be ascertained.
B. Petition for Guardianship
1. Who may petition?
a) Mental Incapacity.
ii) Two or more relatives or friends
iii) Non-profit corporation authorized to act as guardian
iv) Agency within the Executive office of Health and
Human Services or Department of Education
ii) Department of Public Welfare
2. Grounds for Appointment
a) Mental Illness (M.G.L. c. 201 §6).
i) Incapable of taking care of himself/herself
ii) By reason of mental illness
b) Mental Retardation (M.G.L. c. 201 §6A).
i) Ward is mentally retarded
ii) Incapable of making informed decisions with respect to
conduct of his/her personal and financial affairs
iii) Failure to appoint would create an unreasonable risk to
ward’s health, welfare and property
iv) Conservator would not be sufficient
c) Incapacity to make or communicate informed decisions (M.G.L. c.
i) Unable to make or communicate informed decisions
ii) Due to physical incapacity or illness
d) Spendthrift (M.G.L. c. 201 §8).
i) Spent, wasted or otherwise lessened his/her estate to the
extent of exposing himself/herself or his/her family to want
or suffering, or the Department of Public Welfare to
charges or expense for his/her support or for the support of
ii) By excessive drinking, gaming, idleness or debauchery of
C. Required Documents (see Exhibit B)
1. Assented to Motion for Appointment of Temporary Guardian
2. Medical Certificate (Form CJ-P 112)
3. Affidavit for Temporary Guardianship (Form CJ-P 113)
4. Appointment of Guardian ad Litem (Form CJ-P 119)
5. Bond of Temporary Guardian (Form CJ-P 26)
6. Temporary Decree of Guardianship (Form CJ-P 114)
7. Bond of Permanent Guardian (Form CJ-P 26)
8. Guardianship Petition (Form CJ-P 110)
9. Permanent Decree of Guardianship (Form CJ-P 116)
10. Complaint for Estate Planning
IV. THE LAWYER’S ETHICAL RESPONSIBILITIES TO A CLIENT OF DIMINISHED
A. Rule 1.14 of the Model Rules of Professional Conduct, which were adapted
by the Massachusetts Supreme Judicial Court as the Massachusetts Rules of
Professional Conduct effective January 1, 1998, provides as follows:
“(a) When a client’s ability to make adequately considered decisions in
connection with the representation is impaired, whether because of
minority, mental disability, or for some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer relationship
with the client.
“(b) If a lawyer reasonably believes that a client has become
incompetent or that a normal client-lawyer relationship cannot be
maintained as provided in paragraph (a) because the client lacks
sufficient capacity to communicate or to make adequately considered
decisions in connection with the representation, and if the lawyer
reasonably believes that the client is at risk of substantial harm, physical,
mental, financial, or otherwise, the lawyer may take the following
action. The lawyer may consult family members, adult protective
agencies, or other individuals or entities that have authority to protect
the client, and, if it reasonably appears necessary, the lawyer may seek
the appointment of a guardian ad litem, conservator, or a guardian, as the
case may be. The lawyer may consult only those individuals or entities
reasonably necessary to protect the client’s interests and may not consult
any individual or entity that the lawyer believes, after reasonable
inquiry, will act in a fashion adverse to the interests of the client. In
taking any of these actions the lawyer may disclose confidential
information of the client only to the extent necessary to protect the
B. Massachusetts Rule 1.14(b) differs from the comparable provision of the
Model Rules, in that it expressly authorizes the lawyer for a client who lacks
“sufficient capacity to communicate” or “ to make adequately considered
decisions” in connection with the representation to take certain actions if the
lawyer reasonably believes that there is risk to the client of substantial
physical, mental or financial harm, including consulting with family members
or government agencies, regarding protective services and if it appears
reasonably necessary, to seek appointment of a guardian, conservator or
guardian ad litem on behalf of the client.
C. The Massachusetts rule recognizes that legal capacity is not an “all or
nothing” state of mind and that clients with diminished capacity may be
capable of making decisions in some areas. The Rule thus requires the lawyer
to treat the client “with attention and respect” and to maintain communication
with the client notwithstanding the client’s disability.
D. Furthermore, although in many states the lawyer for an incapacitated client is
prevented from disclosing information about the client’s disabilities, under the
Massachusetts rule such disclosures are permitted to the extent necessary to
protect the client’s interests.