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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.



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.


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.


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.


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.


ABA Commission on Law and Aging

740 Fifteenth St., NW

Washington, DC 20005

Phone: 202-662-8690



The Legal Clinic for the Elderly,

Wake Forest University School of Law


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. Article accessible via www.naela.org.

Elderly man reviewing and signing legal documents Elderly hanband and wife smiling together Disability Planning Title image

Many older persons who are not eligible for Social Security retirement benefits because they have not accumulated enough work credits may nevertheless be eligible for SSI, and may be able to supplement their benefits with SSI payments.

Man in wheelchair Estate Planning title image

If you postpone planning for your demise until it is too late, you run the risk that your intended beneficiaries may not receive what you would want them to receive whether due to extra administration costs, unnecessary taxes or squabbling among your heirs.

Lawn chair on dock overlooking bay Health Care Decisions title image

Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we will become sick and unable to make our own medical decisions. These instructions fall under the general category of "health care decision making."

Elderly man visiting physician Long-term Care Insurance title image

With nursing home care in some parts of the country costing as much as $10,000 a month, a long-term need for care can deplete even the best-planned estate. As a result, many seniors purchase long-term care insurance to cover this risk.

Holding hands Medicaid Planning title image

Careful planning can help protect your estate, whether for your spouse or for your children. This can be done by purchasing long-term care insurance or by making sure you receive the benefits to which you are entitled under the Medicare and Medicaid programs.

Medicaid Planning book image Medicare title text

Medicare is the federal government's principal health care insurance program for people 65 years of age and over. The Medicare program insures 39 million Americans. Medicare is an entitlement program, meaning it is not based on financial need.

Medicare text in front of American Flag Nursing Home Issues title image

Can there be a more difficult job than finding a nursing home for a parent or spouse? No one wants to live in a nursing home. In most cases, finding the right nursing home is a once-in a-lifetime task, one you're taking on without the experience of having done it before.

Elderly people sitting in chairs against a wall in hallway of nursing home Retirement Living title text

Most care for the elderly is provided at home, whether by family or by hired help. While many consider in-home care preferable to institutional care, there are public benefits and legal considerations that come into play as well.

Married couple in prime of life sitting on bench together Social Security title image

For most retired workers and their dependents, however, Social Security retirement benefits are not enough for them to maintain the standard of living they had before retirement, although benefits are protected against inflation by annual Cost of Living Adjustments.

Social security card image How and Why Wy Maintain our "FOCUS" . . . to Better Serve ALL Parties in the Process - Section Title Image