The American Bar Association has revised Model Rule 1.14, addressing how attorneys represent clients with limitations in decision-making.
On its face, the change may look modest.
It is not.
In my view, this revision reflects something much bigger: the legal profession is finally catching up to what many of us in Elder Law have known—and been teaching—since the early 2000s.
When I Started, the Answer Was “No”
When I began practicing Elder Law, the prevailing mindset was simple:
If a client had a diagnosis of dementia, the conversation was essentially over.
They were viewed as incompetent.
They could not sign documents.
And the attorney’s role shifted almost immediately to working with the family or pursuing guardianship.
There was very little room for nuance.
There was even less room for judgment.
And frankly, it didn’t sit right with me.
Because what I was seeing in practice didn’t match that rigid framework.
I had clients with early-stage dementia who clearly understood what they wanted.
They could express their wishes.
They could participate in planning—if you took the time to work with them properly.
But under the traditional approach, those clients were often shut out of their own planning.
The Influence of Sabatino—and a Different Way to Think About Capacity
Around that time, Charles Sabatino’s work—“Representing a Client with Diminished Capacity: How Do You Know It And What Do You Do About It?”—helped articulate what many of us were experiencing in real time.
The key idea was this:
Capacity is not a diagnosis. It is a functional, decision-specific assessment.
That distinction changed everything for me.
Instead of asking, “Does this client have dementia?”
The better question became:
“Can this client understand and make this decision, right now, with the right support?”
That is a very different analysis.
And it leads to very different outcomes.
What the New Rule 1.14 Gets Right
The revised ABA Model Rule 1.14 reflects that same evolution in thinking.
One of the most important changes is the shift in language from “diminished capacity” to “decision-making limitations.”
That may sound minor, but it is anything but.
It moves us away from labeling the client and toward evaluating the situation. It recognizes what we have long seen in practice:
- Capacity is not all-or-nothing
- It can vary depending on the decision
- It can improve with the right support
In other words, the rule now aligns with reality.
Supported Decision-Making: The Middle Ground We Needed
Another critical development is the recognition of supported decision-making.
For years, the profession tended to operate at two extremes:
- Either the client had full capacity and made decisions independently
- Or the client lacked capacity and someone else took over
There was very little in between.
But in practice, there is almost always a middle ground.
Many clients can make their own decisions if:
- Information is explained clearly
- The pace is appropriate
- Trusted individuals are involved in a supportive—not controlling—role
That is what supported decision-making acknowledges.
And it is exactly how many experienced Elder Law attorneys have been working for years, even before the rule caught up.
Guardianship: From Default to Last Resort
The revised rule also makes clear that guardianship should be a last resort, not a starting point.
Again, this reflects what those of us in the trenches have seen repeatedly.
Guardianship can be necessary. There is no question about that.
But it is also:
- Restrictive
- Expensive
- Often broader than needed
Too often in the past, it became the default simply because attorneys were unsure how to proceed otherwise. The medical field also pushed this position since was then easier for them to work with someone "court appointed" and not having to deal with someone with memory issues.
The new rule pushes us to do better.
To look for alternatives.
To preserve autonomy where possible.
And to avoid removing rights unless it is truly necessary.
What This Means for Your Practice
The practical impact of this change is significant.
You can no longer rely on a simple checkbox approach to capacity. A diagnosis alone is not enough. You must evaluate the client in front of you, in the context of the decision being made. You must work to allow this client to achieve their goals. If you follow these guidelines, it's no longer as easy to push them aside and say "we just need to file a guardianship". I've been saying this for nearly 30 years.
That requires judgment.
It requires communication skills.
And it requires a willingness to slow down and actually work with the client.
It also requires proper documentation—because if you are going to proceed in these situations, you need to be able to explain how and why you made that decision.
For many attorneys, this is where the discomfort lies.
Not because they don’t care—but because they were never taught how to do it.
The Reality: Most Attorneys Were Never Trained for This
Law school did not teach this.
Most CLEs do not go deep enough into it.
And as a result, many attorneys still fall back on the old mindset:
- Defer to the family
- Decline representation
- Or move too quickly toward guardianship
The problem is, that approach is no longer consistent with where the profession is going.
A Personal Note: This Isn’t New—It’s Finally Recognized
From my perspective, this change is less about something new and more about something finally being acknowledged.
For over 20 years, I have taught attorneys that:
- A diagnosis does not equal incapacity
- Clients deserve to be part of their own planning whenever possible
- Our job is to facilitate decision-making—not replace it
There were times early on when that approach was questioned and even scoffed.
Today, it is being reinforced by the ABA.
Final Thoughts
The revised Rule 1.14 represents an important step forward for the profession.
It emphasizes autonomy.
It encourages thoughtful judgment.
And it reflects the realities we see every day in Elder Law practice.
But a rule alone does not change how attorneys practice.
That requires education, experience, and guidance.
Because knowing what the rule says is one thing.
Knowing how to apply it in a real client situation is something else entirely.
Frequently Asked Questions About the New ABA Rule 1.14
What is ABA Model Rule 1.14?
ABA Model Rule 1.14 provides guidance for attorneys representing clients who have limitations in their ability to make adequately considered decisions, while emphasizing the importance of maintaining the attorney-client relationship.
What is the most important change in the revised Rule 1.14?
The shift from “diminished capacity” to “decision-making limitations,” along with a stronger emphasis on client autonomy and supported decision-making.
Does a diagnosis of dementia mean a client cannot sign legal documents?
No. A diagnosis alone does not determine capacity. The proper analysis is whether the client can understand and make the specific decision at hand.
What is supported decision-making?
Supported decision-making allows clients to receive help from trusted individuals to understand their options and make decisions, while retaining ultimate authority.
Is guardianship still allowed under the new rule?
Yes, but it is intended to be a last resort after less restrictive alternatives have been considered.
How should attorneys evaluate capacity under the new rule?
Capacity should be evaluated functionally and contextually, focusing on the client’s ability to understand and make a specific decision at a specific time.
Why is this change important for Elder Law attorneys?
Because issues of capacity arise frequently in Elder Law, and the revised rule requires a more nuanced, client-centered approach.
What are the risks of following the old approach to capacity?
Attorneys may unnecessarily exclude clients from decision-making, rely too heavily on family members, or pursue overly restrictive solutions like guardianship.
How can attorneys become more confident in handling these cases?
Through practical training, real-world experience, and guidance on how to evaluate, document, and proceed in situations involving decision-making limitations.
