Some of the common ethical problems elder law attorneys face are issues related to Conflicts of Interests in representing the elder client, Duties of loyalty and Confidentiality and capacity issues relating to the elder client.
Conflicts of interest issues may arise when an elder law attorney represents the elder client and their family members. An example of this is when the elder law attorney provides estate planning services for the elder client, and the elder client then requires a Conservatorship. The family typically wants to retain the elders attorney for representation as conservator ( State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 1989-112). Under Cal. Rules of Prof. Responsibility 3-3-310, an attorney is required to disclose actual or potential conflicts in representation, and required to obtain informed written consent of the Client and family members and a waiver for all parties, including the elder and family members. The attorney in the above example should obtain written informed consent from all parties.
Although there is no codified duty, an attorney has a duty of undivided loyalty to the [elder client] which is fiduciary ( People Ex rel Dept. of Corps. v. SpeeDee Oil Changes Sys. (1999) 20. Cal. 4th 1335. In some instances, family members believe that the attorney representing the elder is representing the entire family. To avoid this, good practice would be to advise participating family members in writing they are not being represented by the attorney.
An attorney has a duty to maintain Client confidences and secrets of clients(Business and Professional Code section 6068(e)). This also covers non verbal communication. Elder Law attorneys may face this issue when there is a family member who is taking the elder client to the meeting or present in the meeting. Good practice is to meet with the elder client independently of family members, even if that family member was the attorneys first point of contact with the attorney. This duty to protect client confidences may come up in the estate planning context. It is good practice for an attorney to consult with the elder client independently of their participating family members, who may inform or even transcribe for the attorney what the elder wants. Best practice is for the attorney to verify any changes with the elder directly and in confidence- that the elder wants to execute or change their estate plan. An elder law attorneys duty of confidence also comes up when the Elder law attorneys observes issues relating to the capacity of the elder client based on their demeanor and actions.
Clients with potential limited capacity pose several ethical concerns for elder law attorneys. If the elderly client is losing capacity, the attorney must determine if the Client is capable of engaging the attorney (attorney-client agreement). In addition, the attorney must determine if the elder is capable of making estate plan decisions, if there are any signs of elder abuse, and how to properly maintain the duty of confidence with the elder client if a fiduciary is involved.
Representing seniors requires significant skill and care. Practitioners should always have a team of professionals available to serve the needs of one of our most vulnerable classes of persons, and make sure to keep up on the changes in laws impacting the Elderly.
By Verleana D. Green, Esq.- Owner, Law Offices of Verleana D. Green