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Ethics Opinion

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CI-872

February 17, 1983

SYLLABUS

    Where it is apparent that a client is mentally incapacitated and his capacity to make decisions concerning a suit or other legal proceedings are absent, the client's attorney shall not proceed until a guardian or other legally responsible person authorized to act is appointed for the client.

    References: MSA 27.5008(2), 27.5443; Dexter v. Hall, 82 US 73 (1872); Hunt v. Ronsmanier's Adm'rs, 21 US 589 (1823).

TEXT

A lawyer for an incarcerated client is advised that the client has taken ill, is not competent to make decisions, and it is unlikely that the client will ever be competent to make decisions in the future. What is the scope of the lawyer's authority?

From the facts presented it appears that the client is a legally incapacitated person well within the meaning of MSA 27.5008(2), MCLA 700.8(2). While the Committee is not permitted to advise on legal matters, there is ample authority for the proposition that once a person loses mental capacity the attorney is without the power to act. Dexter v. Hall, 82 US 73, 15 Wall 9 (1872); Hunt v. Rousmanier's Adm'rs., 21 US 589, 8 Wheat 174 (1832). In an attorney-client relationship the contract contemplates that the client will give directions and the attorney will follow within all law and ethical consideration. A contract for employment of legal counsel may well be terminated by mental illness. 17 Am Jur 2d 866.

The probate code provides for appointment of conservators and guardians where a person is a legally incapacitated person. Any person interested in the legally incapacitated person's welfare may so petition. MSA 27.5443, MCLA 700.344. The guardian then would be in a position to hire counsel and allow that counsel to proceed under the powers granted in the act or those which could be granted after petition to the court for guidance.

In summary, where it is apparent that a client is mentally incapacitated and his capacities to make decisions concerning a suit or other legal proceedings are absent, the attorney should not proceed until a guardian or other legally responsible person gives direction.

This opinion does not consider the situation where a lawyer is appointed for a person already alleged to be mentally incapacitated. For that set of facts see CI-184.

 
     

 

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