Earlier this year, we wrote about the ABA’s substantial revision of Model Rule 1.14. The ABA replaced the familiar concept of a client with “diminished capacity” with a client who has “decision-making limitations,” and rewrote the rule to focus more closely on the client’s actual ability to make a particular decision.
Now the ABA has returned to the subject. On September 2, 2026, it issued Formal Opinion 525, which offers practical guidance about what a lawyer should do when a client does not seem to be making good decisions.
That problem is probably more common than the phrase “decision-making limitations” suggests. An elderly succession client wants to make a significant change to an estate plan for reasons that do not make much sense to the lawyer. A family member who has always accompanied the client to meetings begins answering all of the questions. A client rejects a settlement that the lawyer believes is plainly in the client’s interest. Or a longtime client begins behaving so differently that the lawyer wonders whether the client really understands what is happening.
Opinion 525 begins from an important premise: a bad decision is still the client’s decision.
The question is not simply whether the decision makes sense to the lawyer. It is whether the client can receive and understand the relevant information, evaluate it, and make or communicate a decision. The opinion suggests considering whether the client can explain the reasoning behind a decision, appreciate its consequences, and relate it to the client’s established values and commitments.
Importantly, the lawyer does not outsource this determination to a doctor. A medical diagnosis may be relevant, but it does not answer the ethical question. A person with dementia, an intellectual disability, or a mental-health condition may nevertheless be perfectly capable of making the particular legal decision at issue. Conversely, Rule 1.14 can become relevant without a judicial declaration of incapacity or a medical diagnosis.
Before concluding that a client cannot make a decision, the lawyer should also consider whether the problem can be addressed by changing the way the lawyer communicates. The revised rule emphasizes supports and accommodations: using plain language, slowing down an explanation, changing the setting, using communication assistance, or sometimes involving a trusted person. A client who struggles to understand a ten-minute explanation filled with legal terminology may understand the choice perfectly well when it is explained differently.
Only when the circumstances warrant it does Rule 1.14 permit the lawyer to take protective action. Formal Opinion 525 discusses measures ranging from consulting people who may be able to help the client to seeking a guardianship in sufficiently serious circumstances. But guardianship is not supposed to be the first answer, and the lawyer should consider less restrictive alternatives.
