Or, Why Do I Have To Sit In The Reception Area?
Very often, an older client will come to my office for an initial consultation for estate planning, and they will bring their son, daughter, or grandchild with them. Sometimes, it is the family member themselves that sets up the appointment. The client wants the family member to sit in on the consultation for a variety of reasons. It could be that the presence of the family member is comforting to the client when talking about death; it could be that the family member is already handling the finances for the client and it is practical to have them sit in on the consultation.
As long as the client affirmatively consents to having the family member present, I’m happy to include the family member in at least part of the consultation. However, ethical guidelines require that at some point, I politely, but firmly, kick the family member out of the room, so that I can speak to my client alone.
- Client Identification. Before the family member is asked to wait outside, I let everyone in the room know that I represent the older person, and not the family member (even if the family member is footing the bill). I am duty bound to give the client my loyalty and confidentiality. Although she may ask other family members for their opinions and advice, at the end of the day, I take my direction from her.
- Conflicts of Interest. An attorney cannot ethically represent two people who have actual, or even potential, conflicts of interest. Mostly this is avoided in the representation of an older person by making it clear that I represent her only, and not her family member, even if the family member and the client are joint owners of an asset. For example, if the client and her son jointly own a home, I can only give legal advice to the client. The advice I give her may not be what the son wants, but I cannot make that a consideration in advising my client. Which leads to the third C…
- Confidentiality. An attorney has an obligation to keep information and communications between the client and the attorney confidential. If there are communications with my client in the presence of another person, those communications may not be confidential. I need to make sure that my client trusts that she can talk to me and have information kept confidential, if that is what she wishes.
- Capacity. As an attorney, I have a duty to assess a client’s understanding of the estate planning process. Many older clients may have some memory issues, and a family member may be helpful in filling in details of finances. However, I need to assure myself that the client has the legal capacity to make important decisions about the disposition of their estate. For this reason, it is necessary that I have a conversation with the client, alone. Sometimes, the client’s capacity issues are so great that I cannot ethically have them sign a legal document. In that case, I will not be able to continue the representation, and may discuss guardianship or other options with the client and their family.
Understanding the “Four C’s” of attorney ethics when it comes to older clients will help their families understand that speaking to the client alone is for everyone’s protection and ultimately in the best interest of the client.