Drifting away and losing focus: the aging high-net-worth client in their wisdom, confusion and vulnerability

Report on a panel session at the IBA’s 31st Annual International Private Client Conference, held on 3 March 2026

Session Co-Chairs
Rachel Mainwaring-Taylor  RMT Law, England
Markus Zwicky  Zwicky & Partner, Zug

Panellists
Tom Amlot  Penningtons Manches Cooper, London
Jake L Kaplan  Alston & Bird, Atlanta
Helene Rebholz  paragraph 7, Liechtenstein
Kapiala Sachdev  Halcyon Doctors, England

Reporter
Keith Grima  Fenech & Fenech Advocates, Malta

Introduction

This conference session addressed one of the most sensitive and increasingly common challenges facing legal, tax and advisory professionals: how to respond when an ageing client becomes vulnerable, less autonomous and their decision-making is questioned, all this in the context of one’s mental capacity and exposure to undue influence. As global populations age and wealth concentrations grow among older individuals, professionals are encountering more cases where diminished capacity, undue influence and unconventional personal decisions converge. 

The co-chairs, Rachel Mainwaring-Taylor and Markus Zwicky, assembled panellists from Europe and the United States. By using a deliberately provocative case study, they examined how practitioners across jurisdictions can recognise the early warning signs of capacity loss, navigate ethical concerns and implement planning measures, while still respecting a client’s fundamental right to self‑determination.

The panel session brought together perspectives from succession law, family law and tax law, while also providing a medical perspective through the involvement of psychiatrist Kapiala Sachdev, thus offering a well-rounded approach to the matters discussed. 

Panel discussion

Case study

The panel discussion initially revolved around a fictional but realistic case study involving matriarch ‘M’, an 85‑year‑old widow and former business leader who had accumulated substantial wealth over several decades. Her assets included operating businesses, real estate, valuable movable assets and partially structured holdings. 

Key elements of the scenario included: 

• a long and previously stable marriage, followed by bereavement;

• two adult children with noticeably different personal and financial circumstances;

• a long‑serving private secretary, ‘X,’ who gradually becomes deeply involved in both M’s personal and financial affairs;

• progressive isolation of M from her children;

• sudden shifts in M’s religious beliefs, estate planning intentions and romantic attachment; and 

• consideration of significant gifts, asset transfers and remarriage late in life. 

The case study mirrors patterns and scenarios frequently observed in professional practice, particularly where dependency, emotional attachment and undue influence begin to replace one’s earlier independence. 

Jurisdictional approaches

In the context of the case study put forward, the panel discussed the varying jurisdictional approaches and considerations surrounding mental capacity, in particular the proof required to prove the same in the context of changes to wills previously put in place, powers of attorney (POAs) and the making of gifts inter vivos.

Jake Kaplan explained that the threshold for establishing mental capacity in the context of changes to a will is relatively low. In practice, this requires that, at the time of execution, the testator is able to understand the essential elements of the disposition, namely, who the beneficiaries are and what each is to receive. By contrast, Kaplan noted that a slightly higher evidentiary standard applies when executing POAs. In such cases, the individual must demonstrate that they are of sound mind, understand the nature and effect of the document being executed and be capable of explaining the rationale for granting the POA. Kaplan also highlighted the particular challenges that arise when assessing capacity in the context of making gifts. In this regard, he outlined key considerations and practical steps aimed at safeguarding against undue influence where testamentary dispositions are concerned.

Helene Rebholz then offered a perspective from Liechtenstein. She explained that Liechtenstein law does not recognise varying levels of legal or intellectual capacity; rather, an individual is either deemed to have capacity to execute a legal instrument or not. The assessment focuses on whether the individual understands the act being performed, the document being signed and the legal consequences of that decision. Rebholz observed that certain nuances have emerged through case law, referring to a decision in which the court considered issues of free will and undue influence alongside the individual’s cognitive capacity. This development reflects the increasing judicial recognition that an individual may possess cognitive understanding of an act, while nonetheless lacking the ability to act autonomously.

Sachdev was invited to comment on this point from a clinical perspective. She noted that while the ultimate determination of undue influence rests with the courts, psychiatrists may take such factors into account when preparing expert reports. These observations may include indicators such as social isolation, frailty, dependency and broader contextual factors that could impair an individual’s ability to exercise independent decision-making.

Capacity to contract marriage

From a UK perspective, Tom Amlot focused on the legal test for capacity to contract marriage, emphasising the significance attributed to marriage within the jurisdiction. He referred to a decision by Mostyn J which, notably, drew upon authorities spanning more than a century and traced the relevant principles back to medieval common law doctrines that continue to apply today. These authorities establish that the threshold for demonstrating capacity to marry is relatively low, requiring only that the parties have a broad understanding of the nature of marriage.

Amlot also explained the distinction between void and voidable marriages. A void marriage is one that is fundamentally defective and, therefore, invalid ab initio, such that no valid marriage ever existed. By contrast, a voidable marriage, of which a lack of capacity is an example, remains legally valid unless and until it is annulled. In such cases, the parties retain the ability to bring financial and other claims against one another notwithstanding the subsequent annulment.

Noticing a loss of capacity

A central theme of the discussion concerned how professionals first become aware that an individual may be experiencing a loss of mental capacity. The panel explored the ways in which such concerns typically arise in practice and shared insights drawn from cases they are currently handling where capacity issues have emerged. A key point emphasised by the panel was that a loss of capacity is frequently incremental rather than sudden, with early indicators often being subtle, easily overlooked and difficult to distinguish from typical age‑related changes or situational circumstances.

The panel identified a number of recurring indicators that may signal a deterioration in capacity, including:

• deterioration of attention, coherence or continuity of conversation;
• repetition, confusion or difficulty recalling recent events;
• unexplained changes in long‑standing personal views, values or family relationships;
• increased reliance on a single individual for information, access or decision‑making;
• a reduced ability to manage matters that were previously handled competently; and
• the emergence of paranoid or delusional beliefs, such as fears of surveillance or conspiratorial behaviour.

Importantly, the panel underscored that a medical diagnosis (such as dementia) is neither necessary nor sufficient to establish legal incapacity. Many individuals retain capacity well into periods of cognitive decline, while others may experience temporary incapacity arising from factors such as delirium, infection, depression or the effects of medication. The discussion highlighted the need for a careful, context‑specific assessment and an appreciation of the changing nature of capacity, both from a clinical and legal perspective.

Ethical concerns

The ethical dimensions of advising ageing clients emerged as a central theme throughout the session. The panel explored the inherent tension faced by professionals between, on the one hand, respecting a client’s autonomy and the right to make decisions that others may regard as unwise or uncomfortable, and, on the other, the duty to protect clients from potential harm where vulnerability, diminished capacity or exploitation is suspected. The panel emphasised that navigating this balance is particularly challenging and varies significantly across jurisdictions, often depending on the adviser’s relationship with the client and, in many cases, with the client’s family.

The discussion also addressed professional conduct and the ethical strategies that advisers adopt when managing such situations. A range of practical approaches was highlighted, including:

• slowing down major or potentially irreversible decisions (such as disinheritance), rather than acting immediately, in order to allow time for reflection and reconsideration;
• revisiting instructions over a period of time to assess the consistency and stability of intention;
• asking clients to explain their decisions in their own words, as a means of gauging their understanding and reasoning; and
• requiring independent medical assessments of capacity, presented as a protective safeguard rather than an impediment to autonomy.

Conflicts of interest were identified as a frequent ethical challenge, particularly where advisers act for multiple members of the same family. In such circumstances, professional conflict rules may provide a legitimate and necessary basis for declining to implement instructions that would materially prejudice another client.

A further ethical consideration discussed concerned reporting obligations in circumstances of suspected vulnerability. This issue arises, for example, where advisers, such as lawyers acting as officers of the court, may have competing duties to the client and to the wider justice system. The panel noted that approaches differ between jurisdictions as to whether professionals may or must report concerns to guardianship bodies or social services authorities. There was broad agreement that such measures should be regarded as a last resort, given their potentially profound implications for an individual’s autonomy, dignity and legal agency.

Planning for mental incapacity

The panel unanimously emphasised that advance planning while an individual’s’ capacity remains intact is the most effective safeguard against future loss of mental capacity and the risk of undue influence. Proactive planning was consistently identified as critical to preserving autonomy and ensuring that an individual’s wishes are respected over time.

The discussion explored a range of planning mechanisms that may be deployed, depending on the relevant jurisdiction and factual context. Lasting powers of attorney were highlighted as a commonly used and effective tool, enabling individuals to appoint trusted attorneys, clearly define decision‑making authority and incorporate appropriate safeguards, while their capacity is unimpaired.

The use of structures, including trusts and foundations, was also discussed as an important aspect of broader planning. The panellists stressed that for such structures to serve their intended protective function, settlors and founders must genuinely relinquish control and allow trustees, protectors and advisory boards to operate independently. Retained instruction rights, mandatory distributions or excessive control mechanisms were noted as factors that can significantly undermine the protective intent of these arrangements. At the same time, the panel highlighted the importance of maintaining detailed contemporaneous records, including instructions given and any capacity assessments undertaken at the time of establishment. It was emphasised that structures alone are insufficient; effective governance, appropriate conduct and ongoing oversight are all equally essential.

Finally, the panel discussed the role of pre‑ and post‑nuptial agreements, which were strongly endorsed, particularly in the context of later‑life relationships and also in the context of the case study discussed during the session. Such agreements were viewed as a valuable planning tool in managing expectations, protecting assets and reducing the potential for future conflict, especially if framed in the correct context.

Specialist insights

In the last part of the panel discussion, Sachdev provided further insight from a medical perspective, providing essential context for understanding vulnerability and capacity impairment. 

Sachdev provided a number of statistics concerning the prevalence of dementia, and how this increases sharply with age, affecting a significant proportion of those who are 80 years old and over, and even more so among those who are 90 years old and over. She explained how, generally, a diagnosis of dementia and other conditions is often delayed by several years, even in advanced healthcare systems and how cognitive testing alone can be misleading, particularly in well‑educated individuals. As a result, Sachdev explained how noticing and understanding one’s functional decline, such as impaired judgment, decision‑making or self‑care, is often more revealing than test scores. 

Sachdev highlighted several common causes of impaired capacity, which among others include: 

• dementia (gradual and progressive);
• delirium (acute and often reversible); 
• depression and psychosis;
• schizophrenia; and
• substance misuse. 

Sachdev encouraged professionals to trust their instincts, document any concerns carefully and seek medical input where decisions appear inconsistent with a client’s prior values or interests. 

Conclusion and final remarks

This panel session underscored the complexity and sensitivity of advising ageing clients at the intersection of mental capacity, undue influence and personal autonomy.

Through a multidisciplinary and comparative lens, the panel highlighted that capacity is rarely lost abruptly, ethical dilemmas are rarely clear cut and professional responses must be nuanced, proportionate and jurisdiction specific. The discussion reinforced that while legal doctrines and clinical assessments provide essential frameworks, practical judgment, ethical awareness and careful documentation remain essential in practice.

A clear consensus emerged around the importance of early engagement and advance planning, coupled with robust safeguards and governance mechanisms, as the most effective means of preserving client autonomy, while reducing future risk. Ultimately, the session emphasised that supporting ageing clients requires not only technical expertise, but also sensitivity, professional courage and a willingness to pause, question and reflect, ensuring that decisions are both legally sound and genuinely reflective of the individual’s free and informed will.