Elder Law: The Importance of Identifying Who the Client Is

I’m going to offer a scenario that may help you understand, through the eyes of the Elder Law Attorney, why it’s important to identify who the client is and why it might be more complicated than you may think:

You bring your elderly father in to see me (or, maybe you come to see me by yourself). You explain your concerns about your father and his limited assets, his failing health, and his diminishing ability to care for himself. You want to hire me to help you, your siblings, and your dad. The first thing I’ll need to do is figure out who my client is.

A helpful brochure published by the American Bar Association:

http://apps.americanbar.org/aging/publications/docs/4cbrochure.pdf

In Elder Law, there are special and unique concerns and ethical issues in the identification of the client.  And, it’s not always as simple as “who’s paying the bill?”  Don’t be surprised if one of the first things the Elder Law attorney does is take the time to figure this important issue out before getting to the problem for which you came to their office in the first place. It may assist the attorney to meet with the client (even if it’s your elderly father) alone, without you there with him, to make this determination and decide how to proceed.

The ABA’s brochure identifies the four basic concerns for the Elder Law attorney as “the four C’s” –

Client Identification – 

The attorney has important ethical and professional obligations to their client and to their client ONLY. Those obligations include but are not limited to competence, diligence, loyalty, and confidentiality. Usually, the client is the person who is “of concern” – or, the reason you came in to see me. Your dad!  Even if you’re paying the attorney fees as his son/daughter, your dad will still likely be the client, unless there are circumstances under which your dad will not/cannot be the client. So, in short, even if you need to be really involved, even to the point of paying the bills and helping explain things to your dad and helping him with the advice he may get, more than likely, your dad is still the client.

Conflict of Interest –

If your dad’s interests intersect with your own and those of your siblings, there may be a conflict of interest. If this is the case, I’ll be representing your dad’s interests. And, although there may be circumstances under which I can represent more than one of you in the family, likely, I will need to represent just your dad and avoid this conflict of interest.

Confidentiality

Unless your dad gives me specific permission to share my work with him and his information with you and your siblings, and I’m convinced he’s not being pressured to do so, I have a duty to your dad to keep his information and our work together confidential. He can give me permission to talk to you about things, but I will need to get permission from him and be satisfied that he really understands what he’s doing.

Competency

One of my most important responsibilities is to assess whether your dad can make decisions for himself.  Can he explain things to me?  Does he understand what I’m asking him to decide? Maybe the answer is “yes, but …….”  If so, I’ll need to figure out what you mean by that for myself. And, if the answer is “no,” then there are some legal documents we may not be able to execute. But, if your dad is no longer able to articulate his wishes and concerns, and is not capacitated to execute certain documents, I am allowed to include others in handling what is best for him physically and financially, and what will keep him safe and cared for properly. This may include you, but it will also include my personal assessment of what my client’s interests are – (what your dad’s interests are).

What does this mean for you?  Be patient while the attorney gathers appropriate information to assist them in determining who the client is, makes that determination at the earliest possible stage, communicates the determination to everyone who needs to know, and puts it in writing. There may be some extra steps involved in solving your dad’s issues because his health and mental state are diminished, but try to understand that the “arm’s length” manner in which the attorney will attempt to figure all this out is meant to protect your dad, and it’s meant to protect you from future challenges to the legal documentation and decision-making your dad now needs to make.

ALL READERS:   This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.