Who Is the Client: Elder Law and Estate Planning

By Judith Holender Loeb

A recent GPSolo article gave tips on how to fire a client. Fortunately, I have rarely faced that dilemma. Perhaps that is a result of having considered three critical ethical decisions when I started my solo practice. Who will be my client? When do I choose? How will I communicate that decision?

I anticipate the typical calls an elder law or estates lawyer receives:

• I need a power of attorney for my mother. Can you write one up for me?
• My sister is the agent for my parents. I don’t like what she is doing. I want to replace her.
• My mom is in a nursing home. I was told she should transfer her property to me.
• I want to change a will provision that my wife and I agreed on when we last met you.
• I’m a beneficiary of the estate. Should I take the stock or cash?

I screen callers very carefully and pay attention to potential ethical concerns. Routinely, I ask or consider the following questions:

Does your relative know you are calling me? If not, what are the caller’s motives and goals? Whose interests are being expressed?

Are you a lawful representative? Does the caller have legal authority to retain a lawyer and act? Are there multiple agents? What are the family dynamics? Do I sense possible undue influence or financial abuse? Should I represent the relative through this particular agent?

Does the caller have access to verifiable information and data I need to evaluate the issues?

Does the caller present a potential, or actual, conflict of interest? If I represent both spouses, may I share the private communications of one spouse with the other? Do I represent an estate’s fiduciary, or the beneficiaries, or both?

I discuss who is my client, and how I operate my practice, during intake calls, in my legal services agreements, at client meetings, and in written communications. Many ethical dilemmas can be avoided by defining and consistently communicating a practice philosophy.

Here is mine:

• My attorney-client relationship extends to the person whose access to long-term health care is at stake, whose money and property is needed to pay for such care, and whose estate planning is affected by these lifetime decisions.
• I spend a lot of time screening callers. I do not accept every matter that comes my way.
• I will work with attorneys-in-fact, after verifying their legal authority, but clearly state in writing that I do not represent the agents individually. I meet my clients to determine their ability to articulate concerns and goals and their capacity to execute legal documents.
• I advise clients about confidentiality and conflicts-of-interest concerns. I require written consents for dual representations, conflict waivers, and client authorizations permitting other family members or parties to participate in their planning.
• Clients receive my written communications policy, and the Statements of Client’s Rights and Responsibilities required by New York law.
• I supervise the signing of legal documents that I prepare. I never act as a scribe.
• If I cannot obtain verifiable client information, either I decline representation, or in rare cases, I consider withdrawing as counsel.

A defined, clearly communicated, and consistent practice philosophy will raise your professional stature, enhance your relationships with clients, and keep you alert to the ethical problems lawyers confront daily.

 

• Judith Holender Loeb, Esq., of Rochester, New York, has a solo practice devoted to elder law, disability law, and estate planning and administration; she may be reached at loebelderlaw@frontiernet.net .

  Copyright 2010