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16 Geo. J. Legal Ethics 597 (2002-2003)
Representing a Client with Diminished Capacity: Where the Law Stands and Where It Needs to Go

handle is hein.journals/geojlege16 and id is 611 raw text is: Representing a Client with Diminished Capacity: Where the Law Stands and Where It Needs to Go JAMES D. GALLAGHER* & CARA M. KEARNEY** *** INTRODUCTION As America's seventy-six million baby boomers approach retirement age, legal issues facing the elderly will become an even more prevalent societal concern.' Elderly people are often targets of evils such as consumer fraud, predatory lending, identity theft, and exploitation, but one evil affects the legal affairs of the elderly that no law or community group can stop: dementia. Dementia is a progressive brain dysfunction, which leads to a gradually growing restriction of daily activities.2 Dementia is characterized by the loss of the ability to think, reason, and remember.3 The most common type of dementia is Alzheimer's disease.4 The probability of suffering from dementia escalates with advancing age.5 As the average U.S. citizen's lifespan continues to increase, and as baby boomers ascend into the age realm of sixty-five and older, the troubling effects of dementia will become even more ubiquitous in society, including in the legal community.6 Legal representation of a client with dementia raises a plethora of ethical issues. An attorney may feel compelled to disregard widely accepted ethical norms when dealing with a client with dementia. For example, one concern attorneys may face is determining the fine line between an attorney abandoning her duty of zealous representation so she can impose her own beliefs of what is right or wrong, and saving her client from making a dangerous decision that the client would not have made but for the dementia. For example, an attorney may * B.A., Princeton University; J.D., Georgetown University Law Center (expected May 2004). ** B.A., University of Pennsylvania (2001); J.D., Georgetown University Law Center (expected May 2004). Cara would like to thank Ricky for being the most patient person she has ever known. *** The authors would like to thank Kandi Parsons and Chris Sabis for all of their advice and support. 1. See Unmesh Kher, Who Needs Doctors? Do-It- Yourself Medica ITests are Popping Up in Malls and on the Web. Can They Be Trusted? TIME, Oct. 28, 2002, at 50. 2. See MAYO CLINIC, Dementia and Memory Loss, available at http://www.mayoclinic.com/ invoke.cfm?id=AZ00003 (last modified Dec. 18, 2000). 3. Id. 4. Id. 5. The frequency of dementia increases with rising age from less than 2% of 65-69 year olds, to 5% of 75-79 year olds, and to more than 20% of 85-89 year olds. One in three people over ninety years of age suffers from moderate or severe dementia. About half of those affected suffer from Alzheimer's disease. About Dementia, available at http://www.dementia.conibgdisplay.jhtml?itemname=dementiaabout (last updated Nov. 22, 2002). 6. See Margaret Graham Tebo, Elder Law Grows Up, 88 A.B.A. J. 42, 42 (Mar. 2002). The 2000 census counted more than fifty-six million U.S. residents older than 55, and the Census Bureau predicts that number will rise substantially through about 2020.

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