It is to the client that attorneys owe the professional duties of competence, communication, diligence, loyalty, and confidentiality. In order to determine to whom the attorney owes these duties, the first step is to answer the question: "Who is the client?"

In elder law and special needs law, identifying the client is challenging because the individual whose welfare and interests are to be protected in the proposed representation may not be present or may be accompanied by family members, appointed fiduciaries, or other trusted third parties. Usually, the client is the individual whose property and interests are to be protected.  Alternatively, a family member, fiduciary, or other person seeking to protect or assist another person can be the client.

In a traditional client-attorney relationship, a prospective client who has capacity engages the attorney after an initial private consultation, thus identifying the client is straightforward.

This Standard provides guidance on the foundational issue of client identification.  In following this guidance, different attorneys with the same set of facts may identify different individuals as the client, and each result is equally appropriate. One thing is certain: regardless of who the client is, the attorney should be vigilant in protecting the individual.

Throughout these Standards, the term “protected individual” refers to the individual whose personal and property interests are the subject of the representation.

The attorney should establish methods for when and how to determine the identity of the client.  Intake forms can help determine the identity of the client.  The form may ask: "Who is seeking legal advice and services?” or "For whom or for whose interests are legal services requested?"  When several people are present at the initial client meeting, the attorney may ask:  "Who is my client?" Where more than one person at the meeting believes the attorney to be representing him or her, the attorney should take additional steps to clarify the identity of the client. The identity of the client should be resolved at the earliest stage so that the client, the attorney, and other involved persons understand:

• Whose interests are to be protected in the legal planning and representation process;
• To whom the attorney owes the professional duties of competence, communication, diligence, loyalty, and confidentiality;
• The steps that may or may not be taken after the initial consultation if the client or protected individual is not present at that meeting; and
• That the attorney will arrange at the earliest practicable time to communicate privately with the person who is expected to be the client. 

The attorney should ensure that all involved persons understand which individual is the client and that the others are not clients. The attorney also should determine whether the client authorizes the attorney to communicate with another person, such as a fiduciary or family member, and obtain the client's written consent to such authorized involvement. 

In identifying the client, when a fiduciary will actively represent the protected individual, the attorney will face questions such as the following: 

May the protected individual be the client, even though they may lack the capacity to act as a traditional client and a fiduciary actively represents the principal?  

May the fiduciary be the client when the protected individual is not able to act as a traditional client?

May both the protected individual and the fiduciary be joint clients?

When an individual has appointed an agent through a power of attorney to act as his or her fiduciary, the attorney may identify the protected person, even though incapacitated, as the client even though the fiduciary retained the attorney.  Alternatively, the attorney may treat the fiduciary as the client. Some state statutes, cases and bar opinions state that an attorney hired by a fiduciary represents and owes a duty only to the fiduciary.  When a fiduciary is involved, client identification should be clarified in the engagement agreement between the attorney and party with the authority to enter into the engagement agreement  (see Section C. Engagement Agreements and Document Drafting).

The attorney should specify this election in the engagement agreement. 

IMPORTANT NOTE: See e.g. New Hampshire Rev. Stat. Ann. §§ 564-B:2-205 (trusts) and 556:31 (wills) (attorney-client privilege applies to communications between the fiduciary and the lawyer for the fiduciary); Ohio Rev. Code § 5815.16 (2007);  Nev. Rev. Stat. Ann. § 162.310 (2015) (“An attorney who represents a fiduciary does not, solely as a result of such attorney-client relationship, assume a corresponding duty of care or other fiduciary duty to a principal.” “Principal” is “any person to whom a fiduciary as such owes an obligation.”); ABA Formal Opinion 94-380; Goldberg v. Frey, 217 Cal. App. 3d 1258 (Cal. Ct. App. 1990), Linth v. Gay, 190 Wn. App. 331, 360 P.3d 844 (2015) (citing Trask v. Butler, 872 P.2d 1080 (1994)): “[A] duty is not owed from an attorney hired by the personal representative of an estate to the estate or the estate beneficiaries.”); Roberts v. Feary, 986 P.2d 690 (Ore. 1999). 

Example 1:  Prospective clients, husband 88 and wife 87 years of age, have been married for 60 years. The husband is incapacitated, needs long-term care, and has appointed his wife as agent under his power of attorney.  The wife meets with the attorney for Medicaid advice.  It may be appropriate for the attorney to represent only the wife. Alternatively, the attorney may represent both spouses as joint clients, if the attorney determines that they share the same goals and have no apparent conflict of interest between them. A conflict of interest may arise when there are children from prior marriages, the spouses have kept their assets separate, or their estate planning goals differ significantly. If a conflict exists, it may be appropriate for the attorney to represent only one party and suggest that the other party obtain separate legal counsel.

Example 2:  Prospective clients are a widow, 90 years of age, and her son, who has been appointed as agent under her power of attorney.  The mother has lost capacity, and the son would like to admit her to a nursing home.  The son meets with the attorney for Medicaid advice. The attorney learns that when she had capacity, the mother expressed a preference to stay at home if she needed long-term care. Here, the son’s preference to admit his mother to a nursing home conflicts with the mother’s stated preference to stay at home. It may be appropriate for the attorney to represent either the son or the mother separately but not to represent the son and the mother jointly due to the conflict of interest between them on the issue of residential placement.  

A private meeting with the prospective client helps the attorney identify the client and assess the prospective client’s capacity and understand his or her wishes, unencumbered and uninfluenced by others. This Standard addresses three common situations confronted by the attorney: (1) the prospective client does not have an involved fiduciary; (2) an agent under a power of attorney assists a principal; and (3) a guardian or conservator assists a ward.  

(1) The prospective client does not have an involved fiduciary. If the prospective client does not have a fiduciary actively assisting him or her, such as an agent under power of attorney or a guardian, the attorney should endeavor to meet with the prospective client privately before commencing the representation. The attorney should carefully explain to the prospective client and other parties involved, including family members, a future agent under power of attorney, and other parties, why a private meeting is important. (See Understanding the Four C’s of Elder Law Ethics)

If the attorney requests a private meeting with the prospective client and the prospective client expresses reservations about meeting privately, the attorney should reemphasize how important it is for the attorney to understand the prospective client’s wishes in a confidential setting.  The attorney should clarify who the client is and that other persons who assist the client are not clients. If the prospective client turns down the request to meet privately and insists that one or more persons be present, the attorney should honor the prospective client’s decision unless the attorney determines that doing so could jeopardize the attorney’s ability to protect the prospective client’s interests.  The attorney should consider and explain to the prospective client the potential effect that the presence of other non-clients may have on the attorney-client privilege.

(2) An agent under a power of attorney assists a principal. When an agent under POA actively assists the principal, the attorney may be asked to represent the principal, the principal and the agent jointly, or the agent only in the agent’s role as a fiduciary. Depending on the circumstances in the case, the attorney may determine whether a private meeting with the principal is warranted. If the agent opposes such a private meeting, the attorney should consider declining the representation or withdrawing from the representation.  When meeting with the principal the attorney should clarify who the client is.

(3) A guardian or conservator assists a ward. If the attorney is asked to represent the guardian or conservator in a court-supervised guardianship or conservatorship for a ward, the attorney will not usually privately meet with the ward.

As part of the client identification process, the attorney should carefully assess the level of influence other involved persons have on a prospective client and whether such influence may be considered undue. The attorney should document any indication of discomfort on the part of the prospective client, the content and tenor of comments, how supportive or dominating the family members or other persons appear to be, and how consistent or inconsistent the prospective client’s stated objectives are with his or her estate planning documents or other expressions of intent.  Based on the attorney’s assessment of these factors, the attorney may decide to limit or decline representation.

 

For example, the attorney’s vigilance should be heightened if a prospective client states, “I want to do whatever my son wants.”  The attorney should be especially cautious when an asset transfer is proposed and even more cautious when the recipient of the transfer is the person requesting the transfer or when the transfer benefits one family member over others.  If the attorney determines that undue influence is present, the attorney should decline representation unless the attorney determines that the prospective client will be able to, perhaps with assistance from the attorney, overcome the impact of such undue influence.  Under some circumstances, the attorney may decide to take further protective action, and in some states, the attorney may be required to do so.