Protecting the Rights and Wishes of an Elderly Client

When I am meeting with elderly clients they often have a son, daughter, or relative with them in a supportive role. While having a trusted love one at your side can be comforting and helpful, there are times that as an attorney I need to speak to the client alone and make sure that their wishes are understood and respected. This is an ethical practice that protects my client as well as their family members.

Who is my client?

It is important to avoid any confusion over who, as an attorney, I am representing, because the distinction is an important one. The client relationship assures competence, diligence, loyalty, and confidentiality.

Essentially, the client is the person whose interests are most at stake in the legal planning, regardless of who is being billed for services. In Elder Law, this means the person whose assets and estate are being protected.

How does confidentiality work in Elder Law?

My duty of confidentiality is to my client. That means that the client has full control over what information I may share with any other party, including family or caregivers.

Some clients will want full transparency, and will choose to share all their choices and decisions with loved ones. Others will prefer more privacy. I will respect and honor their wishes completely.

This will mean that at times I will need to speak to my client one-on-one, to be certain of their wishes and needs. This protects my client, and also protects my client’s family from any appearance of undue influence.

What if my loved one isn’t well enough to make decisions on their own?

Sometimes my clients have a diminished capacity due to age or illness, which involves special ethical responsibilities. With careful discussion and patience, most clients are able to articulate their legal wishes. I also have an obligation to assess my clients’ competency. These discussions are best held privately and will give my client plenty of time, respect, and attention. If a client lacks the legal capacity to be making certain decisions, I will be able to help the family explore other options.

Regardless of individual circumstances, my duty is to protect my client. I have enormous respect for the amount of love and support that my clients receive from their family and caregivers, and I know that working together we can provide the best possible support.

For further information on this topic please see “Why Am I Left in the Waiting Room?” a publication of the American Bar Association.