In this first part of two columns, we’re going to take a look at what happens in the process of meeting an elder law attorney.
Here’s an example of how a typical client may arrive at the office of an elder law attorney:
An adult child discusses estate planning with parents at a family gathering, and the parents determine it’s time to update their documents to reflect life changes that have occurred. The child, who has assisted the parents with making appointments and transportation, handles arranging the initial consultation with the attorney, drives them there and is welcomed. But when the attorney directs the parents to the conference room, the adult child is asked to wait in the waiting room until they are finished.
This scenario is not uncommon. The adult child may feel hurt, angry or annoyed that they are not included in the consultation. After all, they did all of the work in arranging the appointment and driving the parents. Adult children often believe this is especially proper if they expect to be named as fiduciary in their parents’ documents.
If such a scenario occurs, the adult child should not feel hurt, but rather feel relief that they have chosen an ethical attorney to meet with their parents.
There are several reasons why an attorney needs to meet with parents alone for at least part of any initial consultation. Attorneys are bound by certain ethical guidelines that make it difficult for non-clients (including family members) to be present during portions of the consultation.
Those ethical considerations are commonly referred to as the 4 Cs of Elder Law Ethics. We’re going to take a look at two of them today and the other two next week in a second column.
One of the most important things that an elder law attorney must do is identify the client.
Most attorneys who do not practice elder law can do this fairly easily because the individual who initially contacts the attorney is seeking legal services related to a specific legal problem they personally are facing. The client is typically the individual whose interests are at stake or is the individual signing documents.
However, identifying the client can be slightly more difficult for an elder law attorney. The elder law attorney needs to determine whether the initial caller is seeking services for a loved one, for themselves in their role as agent/fiduciary for a loved one, or for some other purpose.
Things are further complicated when an adult child arrives with parents for a consultation and expects to be present during the meeting. If the adult child is present, it is common for them to interject in the conversation in an effort to speak on behalf of their parents. Rather than speaking directly with the client to establish goals and objectives, the attorney may find that the presence of the adult child makes it difficult to ascertain goals and objectives.
The attorney is vulnerable to listening to the goals and objectives of someone who is not the attorney’s client. Furthermore, the adult child may listen to the attorney’s advice and rely on such advice for their own circumstances. In such a situation, the elder law attorney may have created an “accidental” relationship that the attorney did not intend to create.
Identification of the client is most important because of the fiduciary duties an attorney owes to a client. If the attorney is incorrect as to the identity of his or her client or accidentally creates an unintended relationship with an adult child, then the attorney may inadvertently breach certain fiduciary duties owed to any conceivable client.
By having an adult child wait outside during part of the consultation, it allows the attorney to quickly establish the identity of the client and to prevent establishing an accidental relationship with a family member.
Identifying the client is also important as it relates to the second of the 4 Cs: conflicts of interest. An elder law attorney needs to quickly assess whether any conflicts of interest exist between the attorney and the prospective client.
Conflicts of interest occur when an attorney represents two or more individuals or entities with competing interests. The most common example of this is an attorney representing both parties in litigating a dispute. The attorney has a clear conflict of interest in that the attorney could not zealously advocate for one client without detrimentally injuring the other. Attorneys have an ethical obligation to avoid such situations.
In certain situations, attorneys can represent two individuals in the same matter if both parties have the same interests. This is commonly referred to as joint representation. Many elder law attorneys provide estate planning services to married couples. Such a relationship involves joint representation in that both spouses have separate, individual interests. However, spouses often have common estate planning interests.
As mentioned above, having an adult child present during the consultation could create a situation where the attorney enters into an accidental relationship with a family member. The adult child may also be a former or future client of the elder law attorney.
In either scenario, the elder law attorney may be faced with whether a conflict between the parents and the adult child exists. If the elder law attorney determines a potential conflict exists, the elder law attorney would need to assess whether the interests of the adult child were sufficiently similar to the parents or whether an unavoidable conflict will arise. If an unavoidable conflict arises, the elder law attorney may need to withdraw from representing both parties.
By having the adult child wait in the waiting room, it alleviates some of the concern related to conflicts of interest.
In next week’s column, we’ll cover the other two Cs: confidentiality and competence.