The Oklahoma Bar Journal April 2023

A ttorneys & A ging

I N MY FORMER LIFE (BEFORE LAW SCHOOL), I worked for the Oklahoma Department of Human Services in Adult Protective Services. As a regular part of my job, I made mental capacity determinations of adults potentially in need of services. That experience serves me well now that I have transitioned my practice to elder law and estate planning. Determining whether someone has testamentary capacity is now important in my position, as well as understanding the nuances of declining cognitive abilities in those who may be in need of a guardianship. While it may be difficult to assess a client with declining cogni tive abilities, it is another situation entirely in cases where we may encounter another attor ney who may have declining cognitive abilities. Aging and Declining Cognitive Ability in Lawyers By Rhiannon K. Baker

eccentricities have another expla nation. Who are you to raise the issue of their suspected declining cognitive ability? Do you have an ethical duty as a fellow attorney or judge to report that individual, and do you confront that person about their declining abilities? If so, how do you do so nonconfrontationally and tactfully? This article looks at trends and demographics in the legal profes sion, how to identify early signs of cognitive impairment and ethical issues related to attorneys practic ing with cognitive impairment. OUR AGING PROFESSION In 2022, the ABA Profile of the Legal Profession 1 included a num ber of relevant demographics that confirm the profession is aging:

U.S. workers age 65 or older: 7% (about 1 in 14) Lawyers age 65 or older: 13% (about 1 in 8) Median age of U.S. workers in 2019: 42.3 years old Median age of lawyers in 2019: 47.5 years old The median age of lawyers has been rising over time. In 1991, the median age of lawyers was 41; it was 45 in 2000; and in 2019, it was 47.5. Part of this could be attributed to baby boomer lawyers postponing retirement and work ing into older age. The reasons for this vary – whether for financial reasons, personal satisfaction or simply a desire to keep busy or contribute to society. As noted above, in 2020, roughly 13% of

As our profession ages and as the general public becomes more aware of cognitive decline, law yers with dementia have become a subject of growing concern. Maybe someone in our legal profession comes immediately to your mind. Maybe they are a colleague, oppos ing counsel or potentially even a judge. Maybe they are someone you suspect has cognitive impairment, but you would hate to wrongly accuse someone of being impaired. After all, that person may be well known and maybe even revered in the community. That person may have served on numerous boards over the years, won awards, raised their children in the community and even may have been practic ing law longer than you have been alive. Maybe their forgetfulness or

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL