Justia Connect Webinars Representing Clients With Decision-Making Limitations

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Overview AI Webinar Summary

Representing Clients With Decision-Making Limitations

On February 9, 2026, the ABA House of Delegates adopted a new Model Rule 1.14 essentially modernizing in many significant ways the former Model Rule, with a shift from focusing on diminished capacity (under the former rule) to decision-making limitations (under the new rule). Contemporary thought on this subject has changed from a focus on a person’s disability to the client's ability to participate in decisions with appropriate supports.

This program provides a practical, ethics-focused examination of a lawyer’s professional responsibilities when representing clients whose decision-making ability may be impaired due to age, illness, disability, or cognitive limitations. The session will analyze the governing framework under the ABA Model Rules of Professional Conduct, with particular emphasis on Model Rule 1.14 (Client with Decision-Making Limitations) and its interaction with Rule 1.1 (Competence), and Rule 1.4 (Communication), Rule 1.6 (Confidentiality of Information).

Participants will learn how to identify indicators of decision-making limitations, distinguish between legal incapacity and functional limitations, and determine when protective action may be ethically permissible under Rule 1.14(b), including consultation with family members, professionals, or the potential appointment of a guardian. The program will also address how confidentiality is preserved or permissibly limited under Rule 1.6 when taking protective action, and how lawyers can maintain, as far as reasonably possible, an ordinary client-lawyer relationship consistent with new Rule 1.14(a).

The session will include practical guidance on communication techniques, documentation practices, and risk-management strategies to preserve client autonomy while supporting the client in decision-making. Realistic hypotheticals will illustrate common challenges, including potential undue influence, intrusive family members, and decisions regarding disclosure or third-party involvement.

Duration of this webinar: 60 minutes

Originally broadcast: September 28, 2026 11:00 AM PT

Webinar Highlights

This webinar is divided into section summaries, which you can scan for key points and then dive into the sections that interest you the most.

00:00 Introduction

Attorney Howard Krooks, with over 30 years of experience, has extensive legal experience in elder law and estate planning. Howard discusses representing clients with decision-making limitations, referencing Model Rule 1.14. A video is played to illustrate the complexities involved in such cases, particularly regarding client autonomy and decision-making. Howard discusses the complexities of decision-making limitations, using a video example to highlight issues like financial understanding and family involvement. He questions whether the client in the video truly understands the settlement offer, showing how difficult these assessments can be. Howard introduces the revised Model Rule 1.14, which shifts focus from capacity assessment to supporting client autonomy. The new rule encourages lawyers to maintain ordinary client-lawyer relationships and to provide necessary support for decision-making. Howard stresses the importance of understanding the expanded comments to the new rule for proper application.

21:02 New Rule Interpretation and Commentary

The new rule replaces 'diminished capacity' with 'decision-making limitations' to avoid stigmatizing language. Howard explains the formal definition of decision-making limitations, focusing on the client's ability to receive, understand, and evaluate information. He emphasizes the importance of supports and accommodations in alleviating decision-making limitations. The rule encourages maintaining an ordinary client-lawyer relationship, even with decision-making limitations. Howard highlights the need for lawyers to assess and support clients.

37:11 Practical Implications for Lawyers

The new rule emphasizes client autonomy and participation, moving away from a protective-action approach. Howard discusses the expanded duty for lawyers to provide accommodations and consider less restrictive alternatives. He notes the importance of documenting actions and decisions when taking protective action under the new rule. The commentary provides guidance on when protective action is appropriate, emphasizing supports and accommodations. Howard stresses the need for thorough documentation and understanding of the rule's commentary for effective application.

47:23 Protective Action and Guardianship

Howard explains the balance between taking protective action and respecting client autonomy under the new rule. He discusses the potential need for guardianship in certain situations but warns against unnecessary intrusiveness. The new rule clarifies that lawyers can represent clients challenging existing guardianships, emphasizing client-focused representation. Howard compares the old and new rules, highlighting the shift from protection to autonomy and supported decision-making. He advises lawyers to follow the new rule's roadmap and commentary before initiating guardianship proceedings.

53:42 Attorney's Role and Practice Management

Howard reviews what to look for when identifying decision-making limitations, such as possible cognitive signs, comprehension problems, disorientation, etc. Lawyers should assess decision-making limitations themselves, considering medical input but not relying solely on it. He emphasizes the importance of documenting client interactions and decision-making processes. Howard advises on practical steps for lawyers, including updating intake documents and training staff on the new rule. Howard suggests updating retainer and engagement letters to reflect the new rule's focus on supported decision-making. He encourages staying informed about state bar associations' adoption of the new rule and its implications for practice management.

Please note this AI-generated summary provides a general overview of the webinar but may not capture all details, nuances, or the exact words of the speaker. For complete accuracy, please refer to the original webinar recording.

Speaker

Howard Krooks Chair, Elder Law
Cozen O'Connor

With over 30 years of legal experience, Howard's practice is comprehensive, covering estate planning, wills and trusts, elder law, special needs planning, planning for disability, asset protection planning, Medicaid planning, trust and estate administration (probate), fiduciary litigation, guardianship, and health care/financial planning with advance directives. Howard's commitment to excellence and deep understanding of complex legal issues are the cornerstones of his practice, guiding clients through critical life decisions and securing their futures with unwavering confidence. Read More ›

Continuing Legal Education (CLE) Credits

Lawyers: To receive CLE credit, you must verify your law license for free in the Justia Lawyer Directory to become a Justia Connect Practice member. Depending on the jurisdiction or course, you may be eligible for free CLE credit or may need to upgrade your membership to Justia Connect Pro. Check CLE terms for full details.

Alabama CLE

Status: Approved

Format: On-Demand

Credits: 1.00 Ethics

Earn Credit Until: December 31, 2026

Alaska CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Ethics

Earn Credit Until: September 27, 2031

California CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Legal Ethics

Earn Credit Until: June 30, 2028

Hawaii CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Ethics

Earn Credit Until: September 27, 2028

Illinois CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Professional Responsibility - Ethics / Civility / Professionalism / Sexual Harassment Prevention

Earn Credit Until: September 27, 2028

Nebraska CLE

Status: Approved

Format: On-Demand

Credits: 1.00 Professional Responsibility

Earn Credit Until: September 28, 2028

New Jersey CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.20 Ethics/Professionalism

Earn Credit Until: May 29, 2027

North Carolina CLE

Status: Approved

Format: On-Demand

Credits: 1.00 Ethics

Earn Credit Until: February 28, 2027

Ohio CLE

Status: Approved

Format: On-Demand

Credits: 1.00 Attorney Professional Conduct

Earn Credit Until: December 31, 2026

Pennsylvania CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Ethics, Professionalism, or Substance Abuse

Earn Credit Until: September 27, 2028

South Carolina CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Legal Ethics/Professional Responsibility

Difficulty: All Levels

Earn Credit Until: December 31, 2026

Texas CLE

Status: Approved

Format: On-Demand

Credits: 1.00 Legal Ethics/Professional Responsibility

Earn Credit Until: August 31, 2027

Utah CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Ethics

Earn Credit Until: December 31, 2026

Vermont CLE

Status: Approved

Format: Live (Virtual), On-Demand

Credits: 1.00 Ethics

Earn Credit Until: September 28, 2031

West Virginia CLE

Status: Approved

Format: On-Demand

Credits: 1.20 Legal Ethics, etc.

Earn Credit Until: December 31, 2029

This presentation is approved for one hour of Ethics CLE credit in Alabama, one hour of Ethics CLE credit in Alaska, one hour of Legal Ethics CLE credit in California, one hour of Ethics CLE credit in Hawaii, one hour of Professional Responsibility - Ethics / Civility / Professionalism / Sexual Harassment Prevention CLE credit in Illinois, one hour of Professional Responsibility CLE credit in Nebraska, one hour of Ethics CLE credit in North Carolina, one hour of Attorney Professional Conduct CLE credit in Ohio, one hour of Ethics, Professionalism, or Substance Abuse CLE credit in Pennsylvania, one hour of Legal Ethics/Professional Responsibility CLE credit in South Carolina (all levels), one hour of Ethics CLE credit in Utah, one hour of Ethics CLE credit in Vermont, and one hour of Legal Ethics, etc. CLE credit in West Virginia. This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.20 hours of total CLE credit. Of these, 1.20 qualify as total hours of credit for Ethics/Professionalism. This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.00 credit hours, of which 1.00 credit hours will apply to Legal Ethics/Professional Responsibility credit.

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