As an Elder Law attorney, it is rare that my clients show up alone. Most have family members (usually their adult children) along, who are there to offer emotional support, moral support, and, often, a safe ride to and from the appointment. The adult children who show up are usually quite intricately involved in their parent’s long term care planning and estate planning. If you are that adult child, you may have legal questions of your own to ask. Shouldn’t you be included in the legal consultation? After all, isn’t it important that you understand the role you may be playing in your loved one’s future?
Please Don’t Be Offended!
There are several reasons why an Elder Law attorney needs to meet with her older adult client one-on-one for at least part of the legal consultation. So please don’t be offended or surprised if you are politely dismissed from the room. In order to stay compliant with the rules and guidelines of the State Bar, attorneys must ensure that proper client protections are followed. Before real legal advice should be given out, the attorney must to do the following things: 1) identify the client; 2) uncover any potential conflicts of interest; 3) protect confidentiality, and 4) determine competency.
Attorneys must make VERY clear to the entire family–who IS the client and who is NOT the client. The “family” or the “situation” cannot be the client. The client is the individual whose interest are most at stake in the legal planning or legal problem. The client is the one—the only one—to whom the attorney has professional duties of competence, diligence, loyalty, and confidentiality. This is especially important in Elder Law, because adult children may be VERY involved in the legal concerns of the older adult and may even have a stake in the outcome. While it is possible, in some circumstances, for an attorney to represent two clients at once (most commonly, a married couple), it is quite rare. By the end of the consultation, the attorney should identify and confirm for ourselves and for all others present, that our client is the older adult… and ONLY the older adult. This is true regardless of who drove the car to get here, who made the appointment, and who wrote the check for the consultation fee.
Conflicts of Interest
Attorneys must actively avoid conflicts of interest. This means that in most situations, an attorney will usually only have one client in a transaction. Often, parents and children will have different interests in the outcome of a situation. It may be in the best interest of the child for the parents to gift them large sums of money or real estate. However, it may not be in the best interest of the parents to make such large gifts and threaten their own financial security and ability to provide for their own long term care. An attorney could not represent both the children and the parents in this situation. Sometimes joint representation is possible, even with potential conflicts of interest, but it is more likely that we will be representing only the older adult whose interests are at stake. I do the best job for the older adult client by representing only him or her. This is especially true if my client wants to discuss a power of attorney, a last will and testament, or planning for long term care.
Attorneys have an obligation to keep information and communications our clients share with us confidential. That means that we cannot share client information with other family members without the client’s approval. Some clients want all information shared and family member actively involved in discussions; some merely want family members to be given general updates; and some want complete confidentiality. A client may not feel comfortable expressing his or her desires regarding confidentiality when others are in the room for fear that they will offend their loved ones. In all cases we strive to keep our clients—and whomever they choose to involve—fully informed of the issues, options, consequences, and costs relevant to their concerns, and to be responsive to their goals and objectives.
Elder Law attorneys often work with clients whose capacity for making decisions may be diminished. Attorneys must treat clients with diminished capacity with the same attention and respect to which every client is entitled. This means meeting privately with the client and giving him or her enough time to explain what he or she wants. We find that the greater majority of older adults who come for legal consultations are able to tell us what the problem is and how we can help. Sometimes we’ll need to ask relatives for details such as addresses or dates or phone numbers, but even people in the early stages of dementia can usually communicate well enough to give us direction. Assessing a client’s capacity to make decisions is part of our getting to know the client. While most clients can explain a problem and discuss concerns and issues, there will be some clients who cannot. Speaking privately allows us to find this out. When family members answer ALL the questions, it makes it difficult for us to determine our client’s level of understanding.
Meeting one-on-one with our clients is essential to making sure that we are protecting our clients’ best interests. Most of the family members and friend who arrive with a client understand the importance of that one-on-one consultation and, when asked to wait in the lobby, do so willingly and respectfully. They know that family and friends who maintain some distance from the legal counseling and document signings are far less likely to be accused by other family members of undue influence. We don’t want our clients’ choices, and the documents they sign, to be undone one day in the future because we allowed family members to be too involved in the consultation and the legal process. That’s a court case we (and you) would rather avoid.