Tcl - Red Flags of Elder Law Practice - October 2005
| Publication year | 2005 |
| Pages | 24 |
| Citation | Vol. 34 No. 10 Pg. 24 |
2005, October, Pg. 24. TCL - Red Flags of Elder Law Practice - October 2005
October 2005
Vol. 34, No. 10 [Page 24]
A large part of elder law practice involves future planning for clients. In the elder law attorney's discussions with clients and their families, many questions or comments are raised, bringing up significant legal and ethical issues that must be addressed. Questions and concerns elder law attorneys may encounter in their practice may be viewed as "red flags." The elder law attorney must be alert to those red flags peculiar to their practice and be prepared to discuss them carefully with clients in their planning. Also noted are a few law practice management matters the elder law attorney should recognize.
Can you represent me and my children about my estate planning and asset allocation?
* Sometimes attorneys are contacted by the elderly client ("elder") to provide advice as to future planning regarding their assets and estate. Often, attorneys also are contacted by children inquiring about the need for their parents to do future planning. Therefore, from the very beginning of the contact with the attorney, the attorney must establish who is the client and communicate that clearly, not only to the client, but also to other persons present in the initial conference. The attorney should not leave open any question as to the identity of the client. An attorney-client relationship can be implied from the conduct of the parties.1 The attorney's responsibilities will be directed only to the client with competence and diligence, respecting client confidentiality.2
* When the attorney is contacted by a family member who is the agent under a power of attorney for the elder, the attorney will be asked to provide advice directed toward the elder's future planning issues. In this circumstance, the attorney will be representing the agent in his or her fiduciary capacity.
Will there be a conflict of interest if my children join me in talking about my future planning?
* Often there are conflicts between the elder and the family members as to the goals of future planning, and the attorney must avoid such conflicts.3 It is always advisable to meet alone with the elder first. In that initial conversation, the attorney can establish the attorney-client relationship and determine whether it is appropriate to bring the other family members into the discussion. If family members are permitted to be part of the discussion of future planning, the attorney must make it clear that he or she represents only the elder and no other family member.
* Sometimes a former client will bring in his or her parents to discuss future planning. Not only must the attorney be keenly aware of the need to avoid conflicts of interest in this setting,4 but also must be careful to maintain the...
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