Attorneys represent individuals, couples, business, families, corporations – among other clients. One of the types of representation that is common among elder law attorneys is joint representation for a couple (husband and wife or unmarried couple), but many times an elder client might be brought in by an adult child or a caregiver. This can be because the elder wants a companion, doesn’t drive anymore or has physical mobility challenges, or it could be due to reasons having to do with cognitive functioning. The purpose of this blogpost is to give a brief overview of a couple different types of representation from an elder law perspective.
Representation of an Individual
The example I use here will be one of an elder parent who relies on an adult child or children for assistance with some activities. I use this example because it is a relatively common scenario in elder law that many people may not be aware of. Sometimes there may be a question about who the lawyer will represent and for what purpose. The American Bar Association has a helpful flyer here that explains why it is standard practice for elder law attorneys to interview an elder separately. This may be difficult for an adult child who is involved in so many aspects of a parent’s life, but it is consistent with the attorney’s requirements of acting within the Colorado Rules of Professional Conduct, the ethics rules to which all licensed Colorado attorneys must adhere.
Sometimes the elder who executes a durable power of attorney (POA) may wish to have their agent under the POA– either a general (financial) or a health care POA educated about the duties they will be performing in the event the agent must act on behalf of the elder principal. a consult with both the principal and agent about the “job description” – fiduciary responsibilities, how the agent will be expected to perform in the financial POA context, as well as the stated and understood desires of the principal as to medical treatment and preferences for an agent acting under a health care POA. This inclusion of the agent under a POA at a meeting with the elder principal does not mean that the attorney is “representing” the agent as well. It is the attorney’s responsibility to make clear so that both principal and agent understand the nature of the representation. Estate planning and many aspects of elder law are relatively nonadversarial in nature, and it is often the stated wish of the principal, consistent with their own interests, to have the agent “on board” with the expectations of how the principal expects the agent to act. Indeed, educating an agent about their fiduciary responsibilities can be a powerful tool that can make the use of the POA easier and also prevent inadvertent mismanagement or neglect of an agent’s duties. This is understandably in the principal’s interest, and is often an available option. In the medical POA context, an elder principal’s clarification of their stated wishes, along with discussion among the adult child or children who will act as agent(s) in the event that a medical professional determines a principal is unable to give informed consent to treatment.
It is the responsibility of the attorney engaged by the elder to explain in these circumstances the nature of the meeting among the principal and the agent(s) so that it is clear to all those in attendance what the nature of their relationship with the attorney entails.
In some circumstances, it is desired and may be appropriate for the attorney to represent more than one party. Typically this is joint representation of a couple, but it may also be “multigenerational” representation – which is much less common and generally narrow in scope.
The majority of married couples and committed partners engage in joint estate planning. The attorney typically explains the potential for conflict in such a representation and obtains written consent for such representation after explain conflicts of interest that may arise in such representation and the circumstances under which an attorney may continue to represent the parties and those in which she may not.
Joint representation may be problematic for some couples, particularly in a second (or later) marriage or blended family scenario. Sometimes asking the questions about how the representation will proceed may point to underlying areas of conflict. Here’s a link to a helpful Forbes article by Deborah Jacobs, “Estate Planning for Couples: Should It Be a Solo or a Duet?” (This is a guest post by Paul Hood and Emily Bouchard, co-authors of Estate Planning for the Blended Family.)
I’ll write more about this topic again. It is an important one that shows up in different elder law contexts.