Forms of Protective Action

Once all three conditions of Rule 1.14(b) are present, the lawyer may take “reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”¹ The rule names two steps, and they sit at opposite ends of a range. Consulting means talking with people or agencies able to help, such as a relative, a support group, or an adult-protective agency, and it leaves the client’s legal status untouched. Seeking a guardian ad litem, conservator, or guardian asks a court to give someone else authority over decisions that used to belong to the client. That step changes the client’s legal position and takes much of the client’s control over personal and financial affairs.

The wording of the rule shows how the two ends relate. “In appropriate cases” modifies only the guardianship option, so the heavier step is reserved for situations that call for it and does not follow automatically once consultation has been tried.² “Including” makes the two named steps examples, so other measures suited to the situation may also qualify, and because paragraph (b) says may, no named step is mandatory.³ Over the whole list sits the phrase “reasonably necessary,” which governs every step on the range; a later section develops how that limit confines the intervention.

The rule offers graded steps because harm varies in kind and in degree, while the cost to the client’s self-determination rises with each heavier step. A telephone call to a relative who can freeze a bank account may remove a threatened loss entirely. A guardianship petition aimed at the same threat would surrender far more of the client’s autonomy than the problem demands. Choosing a step therefore means fitting the response to the danger. An exam stem describing a client who meets all three conditions usually asks which step fits, and an answer that jumps to guardianship when a conversation with a family member would relieve the harm misses that fit.

Consulting Others

Rule 1.14(b) names consultation first among the protective steps it permits. Once its three conditions are met, the lawyer may take reasonably necessary protective action, “including consulting with individuals or entities that have the ability to take action to protect the client.”⁴ The last clause tells you who may be consulted. A person qualifies because that person can do something about the threatened harm, whether by managing money, arranging care, or invoking legal authority; friendship with the client or interest in the matter does not count. Consultation sits at the gentle end of the range because it leaves the client’s legal status and decision-making authority where they were. The only change is that someone with the means to help now knows about the problem. Many of the people able to help also know the client’s history and values, which a court-appointed representative may not.

The commentary to Rule 1.14 fills in who usually has that ability. It points the lawyer toward family members, support groups, professional services, adult-protective agencies, and other individuals or entities able to protect the client.⁵ Each answers a different kind of need:

A family member may already hold legal authority over the client’s affairs, or may live close enough to check on the client in person.
A support group can connect the client and family with continuing help suited to a particular illness or disability.
A professional service, such as a care manager or a home-health provider, can arrange the practical assistance the client lacks.
An adult-protective agency has the mandate and the resources to look into a vulnerable adult’s circumstances and to bring help to bear.

The commentary offers two further tools that involve no outside party acting on the client at all. The first is a reconsideration period, which gives the lawyer and client time to permit clarification or improvement of circumstances.⁶ Waiting makes sense because capacity can vary from one meeting to the next, so confusion that looks decisive today may lift within days. The tool has an obvious limit: it suits a threat that is not imminent, since delay defeats the purpose when the loss will land before the client’s condition can change. The second tool is a voluntary surrogate decision-making instrument such as a durable power of attorney, meaning a power of attorney that stays effective after the person who signed it loses capacity. The client names an agent while able to do so, and the agent can act later when the client cannot. Because the client chose the agent, the instrument carries the client’s own wishes into the period of incapacity and avoids the court proceeding that guardianship requires. It also depends on the client, since the capacity needed to sign any given instrument varies with the task.⁷ Once the client can no longer understand what is being signed, this option is gone and only heavier steps remain.

The lawyer chooses among these tools guided by the client’s wishes and values to the extent known, the client’s best interests, the goal of intruding on self-determination as little as feasible, the aim of maximizing the client’s own capacities, and respect for the client’s family and social connections.⁸ Consultation tends to satisfy those factors better than the heavier alternatives, because the client stays in charge and the people brought in are often the ones the client already trusts. Every consultation also means telling someone about the client’s situation, so paragraph (c) limits what the lawyer may reveal to what is reasonably necessary to protect the client’s interests, a limit taught in a later section.⁹

Hypothetical Illustration

A client whose confusion comes and goes has fallen behind on his bills, and his heat and electricity will be shut off in two weeks. He cannot work out a payment plan, and no one is managing his accounts. The lawyer reasonably believes his capacity is diminished, that the loss of essential services is a serious risk, and that he cannot arrange a solution himself. With his agreement where he can give it, the lawyer calls his sister, who holds a durable power of attorney over his finances, and contacts an adult-protective agency. The lawyer also asks him to revisit his refusal of help in a few days, when his confusion may have eased. Each person contacted can act: the sister can use her authority to pay the bills, and the agency can arrange assistance. The shutoff is two weeks away, so a short reconsideration period fits. This is consultation within paragraph (b), and the client remains the decision-maker throughout.

The rule’s phrase ability to take action separates a protective consultation from an idle conversation.

The usual exam error is to treat consultation as available whenever a client seems vulnerable. Consultation is a form of protective action under paragraph (b), so all three conditions must be present before the lawyer may use it, and a client who is still deciding and acting effectively does not become a subject of consultation because the lawyer is worried. Nor is it the same as having a relative sit in on a meeting. The person consulted under paragraph (b) is someone who can act to protect the client from the harm.

Seeking a Guardian

Consultation leaves the client’s legal position where it was; the last option Rule 1.14(b) names does the opposite. Once the rule’s three conditions are met, the lawyer may take reasonably necessary protective action that includes, “in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.”¹¹ Each of the three is a representative whom a court appoints to act for the client, and this section treats them together because they share the feature that makes the step heavy: someone else acquires authority over decisions that used to belong to the client. The permission is again a may, and the qualifier “in appropriate cases” attaches to this option alone, so a lawyer who has satisfied the three conditions has not yet shown that a guardianship fits.

The qualifier exists because the profession once treated guardianship as the natural answer. In earlier practice, a case of diminished capacity severe enough to look like incompetence tended to be resolved reflexively by asking whether a guardian or other legal representative should be appointed, and the presumption sometimes ran in favor of seeking one whenever the client could not act in his own best interests.¹² Rule 1.14 still directs that appointment be sought in appropriate cases, but it also encourages the lawyer to weigh alternatives. Guardianship is now one option among several, and it is no longer the default response to incapacity.¹³ Two sets of considerations support that approach: the circumstances in which a guardian really is the best course, and the costs the step imposes on the client.

Some situations leave no lighter tool adequate to the problem. Asking a court to appoint a guardian or other legal representative may well be the best course in circumstances such as these:

the client’s incapacity is severe and likely to be permanent;
an extensive or continuous series of decisions will have to be made; or
the client is incapable of securing personal safety and procuring the daily necessities of life.¹⁴

Each circumstance marks a point at which a lighter tool runs out. A reconsideration period waits for the client’s condition to improve, so incapacity that is likely permanent leaves nothing to wait for. Consulting a relative or an agency can resolve a discrete problem, but a continuing series of decisions calls for someone with standing authority to make them, and a fresh round of consultation each time cannot supply that. A voluntary instrument such as a durable power of attorney requires a client who was able to sign it, so a client already past that point cannot provide one, and a client who cannot secure safety and necessities leaves a gap that only someone with authority over daily life can fill. Agreement among the client’s family or caregivers strengthens the case further, because it makes it less likely that the proceeding will set the client against the people closest to the client, and the rule asks the lawyer to respect the client’s family and social connections.¹⁵

In some situations the choice is no longer discretionary, because a transaction or lawsuit cannot go forward without a legal representative. Where a person is incapable of making reasonably necessary financial transactions on his own behalf, or where litigation is to be pursued on behalf of a minor, appointing or identifying a legal representative may be required.¹⁶ The other party to a transaction and the court hearing a case need someone with recognized authority to act for the client, and a lawyer’s informal conversations with relatives supply none. The word identifying matters here, since a representative who already holds authority may satisfy the need and spare the client a new proceeding.

The costs explain why the rule does not treat the step as routine. The client may be embarrassed by the very start of the proceeding and further humiliated by being examined, the client’s daily life and relationships may be disrupted once a guardian is in place, and the client’s last measure of personal independence and dignity may be given up with little benefit in return.¹⁷ The costs reach the client’s property and the client’s future as well. The guardian may have conflicting interests or handle finances unfaithfully, the expenses of the legal representative may be charged against the client’s already dwindling assets, and the client may find it burdensome to end the guardianship when the immediate need passes or the client recovers.¹⁸ That last cost produces an asymmetry. A guardianship is quick to request and slow to undo, while the need that prompted it may be temporary, so a step chosen for a short-lived problem can outlast the problem by years. The commentary to Rule 1.14 makes the same point when it observes that appointing a guardian “may be more expensive or traumatic for the client than circumstances in fact require,” and it acknowledges that the lawyer’s position in these cases is unavoidably difficult.¹⁹

The seriousness of the step also explains the discipline case that appeared earlier. In Eugster the lawyer filed a guardianship petition against his own client without a reasonable inquiry into her capacity, and the Washington Supreme Court warned that a decision to have a client declared incompetent is a serious act, to be taken only after appropriate investigation and careful, thoughtful deliberation.²⁰ A lawyer who treats guardianship as the answer to every client who cannot act in the client’s own interest skips both that investigation and the question whether a lighter step would relieve the harm. Where the client keeps any capacity to communicate, the lawyer should also hesitate to intervene at all, because the typical lawyer lacks the medical expertise to judge competence.²¹

An exam stem that pairs a confused client with a bill that needs paying is testing whether the lawyer reaches for the heaviest tool first.

The facts that make a guardian appropriate look very different.

The two clients differ in how long the need will last and in whether anyone already holds authority to meet it, and those differences decide whether the heavier step is warranted. Even where a guardian is appropriate, the lawyer remains guided by the client’s wishes and values to the extent known and by the goal of intruding on self-determination as little as feasible.²² The next section takes up how the requirement of reasonable necessity confines the intervention.