Elder Law Ethics or “Why Am I Left Sitting in the Waiting Room?”

View from the roof of the Denver Art Museum

I am openly borrowing from the title of an American Bar Association pamphlet “Why Am I Left in the Waiting Room?:  Understanding the Four C’s of Elder Law Ethics.”  You can read the pamphlet here.    Estate planning is a law practice area that has historically had joint representation as a feature.  This is typical where a married couple, partners in a civil union, or committed partners, do their estate planning together.  Most lawyers have a written fee agreement for this and for a husband and wife the agreement often contains a joint representation waiver which gives both clients the opportunity to consent to one attorney representing them (this typically makes the most sense from a planning and financial perspective) after the attorney advises them of the unique nature of joint representation.

Elder law practice often encompasses the more traditional estate planning services but there can be nuances to the attorney-client relationship when an adult child brings an elder to an attorney’s office.  It is not uncommon for an adult child to find and “vet” an attorney on behalf of the parent.  Sometimes the adult child may wish to pay for the legal services.  Often the adult child has been very involved in the parent’s day-to-day life, but the nature of the attorney-client relationship has boundaries.  The pamphlet referenced above goes over the “four C’s” which an informed client ought to consider, and with which the attorney is assumed to be familiar.  The attorney, after all, is the license holder who is bound to uphold the Colorado Rules of Professional Conduct.

So – what are the “four C’s?

  1. Client Identification: attorneys must communicate and make clear to the client(s) who is the client, and oftentimes – who is not the client.  Even if the elder is not footing the bill for the consultation, the elder is the attorney’s client.
  2. Conflicts of Interest: lawyers have an ethical duty to avoid conflicts of interest – these can crop up whenever an attorney represents more than one person.  When an attorney represents several people with joint or mutual interests, the lawyer is bound to identify potential conflicts of interest and determine whether joint representation is appropriate or allowed.  This can be particularly problematic in an elder law context where one attorney talks with an elder parent and an adult child and it is not clear who the client is – this is why #1  above is #1! Identifying the client means identifying the person to whom the lawyer owes all applicable duties.
  3. Confidentiality: A hallmark of the attorney-client relationship is communication and lawyers must keep confidential the communication between clients and lawyers confidential.  By way of example, it means that if I represent an elder parent and draft a durable power of attorney for them and they want me to be able to talk to their adult child agent about how to use the POA if the need for using it arises, I need to get specific authorization from them to talk with the adult child agent – because the elder parent is my client and I owe a duty of confidentiality to my client.
  4. Capacity: the ABA pamphlet refers to this as “competency” but I find the term “capacity” more appropriate.  Sometimes an adult child will inquire about getting a will drawn up for their parent who is in failing health. Some folks think that a lawyer can simply take instructions from another person about what the elder wants in their will and present and then present such a document for signature by the elder.  This is not appropriate on many levels.  Lawyers are duty bound to get informed consent from their client – on whose behalf the document is prepared –  for a particular course of action.  This means educating the client about the range of alternatives to choose from and then allowing the client to make their own choice among the alternatives.   This can be challenging in the elder law field – particularly when a client may be hard of hearing, vision impaired, or experiencing temporary or ongoing cognitive decline.  The lawyer must determine (as with any type of client) whether a client has the capacity to enter into an attorney-client relationship.

The bottom line for elder law attorneys is that we don’t want our clients’ wishes and choices made to be subject to scrutiny and undoing at a later date because the lines of 1, 2, 3 and 4 above were blurred!  If you bring your mom or dad or Aunt Ethel into my office, rest assured that I will talk to you as well – but I will have you spend some time outside in my waiting area.  Don’t worry, there are good magazines to read.

©Barbara Cashman     www.DenverElderLaw.org

Share

Leave a Reply