It is very common for elderly clients to enlist a family member, friend or caregiver to assist them in making and attending appointments with their attorney. Third parties can facilitate communication and logistics and often want to help the client achieve their legal goals. But these “helpers” occasionally are too involved and influential, promoting their own goals in lieu of the clients. What should the attorney do when the client brings friends or family to their appointment or when helpers contact the attorney for information?
Help is available from materials produced by elder law attorneys Mary Helen McNeal and Kimberly O’Leary and presented at the National Aging and Law Institute in Washington DC in November 2013.
McNeal and O’Leary have developed a protocol to assist attorneys in meeting both ethical and aspirational guidelines when working with elderly clients. While attorneys may already consider these standards in each client contact, following a protocol during the case assures that steps are not missed and results in a file that documents the attorney’s adherence to the standards.
McNeal and O’Leary suggest undertaking the following steps, discussing each area with the client, and documenting the file as appropriate;
1. Identify the client. This is the person who wants you to address their legal issue. The client may not be the person who arranged the meeting or is paying the bill. Meet alone with the potential client, to ensure he or she wants you to handle the legal issue. The lawyer must have a clear engagement agreement with the client, and should also inform helpers who facilitated the meeting or paid the bill need to be clear that they are not the client.
2. Identify other individuals involved who also have a legal issue. Note their interest in the matter. Are they similarly situated, such as a sibling who is also a beneficiary of a trust or estate? Are they a fiduciary of the client, such as an agent under power of attorney or trustee?
3. Evaluate the potential conflicts between the client’s interest and the interests of others. Do not take on a representation that is adverse to a current or former client without consultation and consent of the parties. Be careful about obtaining confidential information before you have identified the client.
4. Identify other individuals involved who do not have a legal issue. What is their interest in the client’s matter? Does the client want them to be involved in the matter? To what degree? The client may want someone to schedule appointments but the helper might start asking you questions. The default is not to provide any information without client consent.
5. Are there any red flags or indicators of abuse, neglect or exploitation by any involved persons against the client? Information on the warning signs can be obtained from your local Adult Protective Services, the Virginia Department of Social Services or the federal Administration on Aging. Individuals who are socially isolated, frail or have diminished capacity are particularly at risk.
6. Are there other individuals whom the client wants involved in the case? Why? In what manner? Do they have information useful to the case? You may be able to obtain information from third parties without revealing confidential client information.
7. Does the client want others involved in meetings or discussions with the attorney? Why does the client want them involved? Will involving those individuals give rise to claims of undue influence? Explain to the client why involving others may be detrimental to the legal services you are providing. Share with the client any concerns you have about this involvement.
Document why the client wants the helper involved.
8. If the client wants you to share information, distinguish between sharing necessary to implements the acts of the client and confidential information. Obtain a written waiver from the client if confidential information must be shared. Consider a limited waiver if the client wants you to involve a helper for administrative tasks related to the representation.
9. Does your client authorize you to release to or discuss any documents – medical power of attorney, financial power or attorney, will or trust – with others in the event of the client’s death or disability? Obtain written consent of the client ahead of time regarding to whom copies of the documents may be released and under what circumstances.
The protocol is helpful for new attorneys working through the issues as well as experienced attorneys who want to be systematic in their approach and documentation of their files.
– By Loretta Morris Williams. Williams practices law with Hale Ball Carlson Baumgartner Murphy PLC in Fairfax.