Lawyer Didn't Need to Ask Client's Daughter Before Helping Him Revoke Power of Attorney

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Feb. 17 — A lawyer did not violate the rule on representing clients with limited capacity when he helped an elderly client revoke a power of attorney held by the client's daughter, so that the client could leave an assisted living facility, the North Dakota Supreme Court decided Feb. 12.

The court concluded that the lawyer acted within his discretion under North Dakota Rule of Professional Conduct 1.14 by talking with the client and making his own judgment that the client was capable of deciding to revoke the power of attorney and move out of the nursing home. The client did not have a court-appointed guardian or conservator, the per curiam opinion points out.

Wide Discretion

The court said lawyers who represent a client with limited capacity have broad professional discretion under Rule 1.14, which directs lawyers to, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”

For guidance on the rule, the court looked to Geoffrey C. Hazard Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering §19.04 (4th ed. 2015), which posits that lawyers are not subject to discipline under Rule 1.14(a) when their action is the product of reasonable deliberation, has a plausible professional basis and arguably serves the client's best interests.

In this case, the court said, attorney Gregory I. Runge talked with client Norman Franz by telephone and in person to ascertain his wishes and capacity after one of Franz's friends asked Runge to assist Franz in revoking a power of attorney so he could leave the facility where he had been living for several months after suffering a heart attack.

Runge's conversations with Franz demonstrated, the court said, that Franz had the ability to articulate his reasons for wanting to leave the nursing home and to appreciate the consequences of his decision. “Runge's assessment of Franz's capacity was within the range of a lawyer's exercise of professional judgment,” it said.

No Guardianship

The court refused to fault Runge for assisting Franz without first contacting a daughter who held a power of attorney to make decisions about his finances and property.

That power of attorney expressly preserved Franz's authority to act for himself and his right to revoke the power of attorney, and it did not appoint anyone to make medical decisions for him, the court noted.

The court also found that Runge was not bound by an “emergency care statement” in the nursing home's medical records, which was signed by the daughter as “responsible party” and stated that Franz was “incapable of making medical decisions.”

Whatever internal significance that document may have had for the nursing home, it did not comply with the statutory requirements for a health care directive and was ineffective as a medical power of attorney, the court said.

The court distinguished Disciplinary Bd. v. Kuhn, 785 N.W.2d 195, 26 Law. Man. Prof. Conduct 439 (N.D. 2010), which held that a lawyer violated Rule 1.14 by drafting a new will for an incapacitated client without going through the court-appointed guardian who had been given full authority over the client's legal matters.

Here, there was no guardianship or conservatorship that withdrew Franz's authority to act for himself, the court pointed out.

Thomas A. Dickson, Bismarck, N.D., represented Runge. Disciplinary Counsel Kara J. Johnson, Bismarck, represented her office.

Full text at http://www.bloomberglaw.com/public/document/Runge_v_Disciplinary_Bd_of_ND_Supreme_Court_2015_ND_32_Court_Opin.

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