Understanding Elder Law and Special Needs Law Ethics

NAELA’s Aspirational Standards for the Practice of Elder Law

In order for a lawyer to join NAELA, he or she must sign a statement supporting NAELA’s Aspirational Standards for the Practice of Elder Law. These standards guide lawyers with respect to client identification, conflicts of interest, confidentiality, competency, client capacity, client communications, marketing, ancillary services, and public service.  This brochure summarizes some of NAELA’s guidelines for lawyers.  

The Issues

Your parent or other elder relative is getting legal advice. The lawyer says that she has to meet with your relative alone. You want to be included. There are several reasons why lawyers need to meet with your family member alone for at least part of the case evaluation process. Family involvement is very important; however, to understand the way professional legal services are provided to individuals who are elderly or disabled, it is important to understand elder law ethics.

Being clear about whom the lawyer represents, meeting alone with the client, respecting confidentiality, and assessing client capacity, are practices that protect the family as well as the client.

You probably have heard of a will or power of attorney being challenged. Today, increasing numbers of cases claim that family members or others had “undue influence” over the older person and that family members benefited unjustly from decisions that were made. Family and other concerned friends who maintain some distance from the legal counseling and document signings are less likely to be accused of undue influence.

WHAT YOU NEED TO KNOW

Client Identification

All lawyers have an ethical obligation to make it very clear who is their client. The client is the person whom the lawyer is advising or otherwise representing. The client is the only person to whom the lawyer has professional duties of competence, diligence, loyalty, and confidentiality. This is especially important in elder law, because family members may be very involved in the legal concerns of the older person and may even have a stake in the outcome.

It is possible, in limited circumstances, for more than one family member to be clients of the same lawyer. This is common with married couples. However, in most cases, the attorney identifies the elder or disabled person as the client. Unless the client consents, no one but the client can pay the client’s fee.

Conflicts of Interest

Lawyers have an obligation to avoid conflicts of interest. This rule means that, in most situations, a lawyer may represent only one individual. For example, when legal planning involves property such as a family home in which several people have or will have an interest, these interests are actually or potentially conflicting. Sometimes joint representation is possible, even with potential conflicts of interest. However, the attorney can do so only with the consent of each client. In most cases, the attorney represents only one person. This is especially true when the older person wants to discuss a financial power of attorney, a will, or planning for long-term care expenses.

Confidentiality

Lawyers also have an ethical obligation to keep information and communications between the client and attorney confidential. That means client information cannot be shared with other family members without the client’s approval. Some clients want all information shared and family members involved in discussions. Some merely want family members to be given general updates. Some want complete confidentiality. It differs from person to person. The attorney must respect the client’s wishes.

In all cases, the attorney must keep the client, and whomever the client chooses to involve, fully informed of issues, options, consequences, and costs  and seek the goals of the client and no one else.

Competency

Lawyers have additional ethical responsibilities when working with clients whose capacity for making decisions may be diminished. Above all, lawyers must treat this client with the same attention and respect to which every client is entitled. This often means meeting privately with the client and giving him or her the time to explain what he or she wants. Many people with diminished capacity can tell the lawyer what they want. Sometimes the lawyer will need to ask relatives for details such as addresses or dates or phone numbers. However, the lawyer must communicate with the client to the maximum extent possible.

Assessing client capacity to make decisions is part of getting to know the client. While most clients can explain the problem and what they want, some cannot. Speaking privately enhances the lawyer’s ability to determine the client’s wishes. When family members answer all the questions, the lawyer may find it difficult to determine the client’s level of understanding. There will be times when the lawyer concludes a client does not have the capacity to understand a requested document, such as a power of attorney or a will. If that happens, the lawyer will explore whether there are other ways to meet the client’s needs.

If a client is unable to make decisions due to diminished capacity, or is at risk of serious physical, financial, or other harm, lawyers are permitted to consider actions to protect that client. This may include consulting with others to assess the client’s situation or taking steps to preserve a legal or personal interest of the client. As the lawyer considers steps to take, he or she must consider the client’s wishes, values and best interests, with no more intrusion than necessary on the client’s right to make decisions.

Adapted with permission from:

ABA Commission on Law and Aging

740 Fifteenth St., NW

Washington, DC 20005. Phone: 202-662-8690

www.abanet.org/aging

Adapted with permission from:

The Legal Clinic for the Elderly,

Wake Forest University School of Law

www.law.wfu.edu/ceclinic

August 2003

This information is provided as a public service and is not intended as legal advice. Such advice should be obtained from a qualified Elder and Special Needs Law attorney.

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