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Representing a Client with Diminished Capacity in Orlando, Florida Area

There was a great article in Action Line, Winter 2023 by Justin A. Shifrin, Esq. with Gunster, Yorkley & Stewart, P. A., West Palm Beach, Florida, titled “Rule 4-1.14: Diminished Capacity Resolving Diminished Clarity.” The article is very informative for an attorney representing a client with diminished capacity. 

Having to represent a client in the Orlando, Florida area with diminished capacity can be challenging. It is a balancing act. You want to zealously represent your client’s wishes and at the same time make sure that your client’s wishes do not jeopardize them physically, financially, or psychologically. It is not an easy job. 

Florida Rules of Professional Conduct

There is good news on guidance for attorneys. The Florida Supreme Court has brought the Florida Rules of Professional Conduct more in line with the ABA Model Rule. Further, the Florida Rule now has new commentary to assist the attorney. That way the attorney can now better serve the client with diminished capacity. 

A lawyer is not required to seek a determination of incapacity or appointment of guardian or take other protective action with respect to a client. However, the Rule authorizes a lawyer to take reasonably necessary protective action when the lawyer believes the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken; and the client cannot adequately act in the client’s own best interest. 

It gives the attorney options to help the client with their representation, such as consulting with individuals or entities that have the ability to act to protect the client. This is much in line with the policies surrounding Florida Statute Chapter 744, the Guardianship Statute. This reminds the attorney that reasonable efforts must be made to exhaust all other available remedies to protect the client before seeking removal of any of the client’s rights or the appointment of a guardian.     

Attorney-Client Privilege

Except for taking protective action authorized subsection (b), the lawyer must look to the client to make decisions on the client’s behalf and should be mindful of protecting the attorney client privilege when taking protective action. The attorney must consider the impact of the attorney’s action on the client regarding the client’s right to privacy and the client’s physical, mental, and emotional well-being.   

If you have more questions regarding an Elder Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. 

This article is for informational purposes only and does not form an attorney client privilege.