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Who is the Client, Parents or Children?
Jan L. Warner & Jan Collins

Question: My 80-year-old mother has lived with me since Dad died early last year. He left everything to Mom, and my brother and I are her only family. Lately, her behavior has become so erratic that I had to reduce my work hours to stay with her. This is very difficult because I was divorced ten years ago and receive no alimony. Every time she gets mad, Mom threatens to leave her property to strangers, and my brother and I are concerned about what will happen if she signs a crazy will and then becomes incompetent. So we took her to a lawyer who is supposed to know his stuff. The lawyer would not let me sit in on the interview, and neither he nor my mother will talk about what is going on. I thought the lawyer was working for my brother and me. What can be done to protect Mom and us?

Answer: When dealing with the families of aging individuals, situations such as you describe are not uncommon. In some instances, families choose to meet as a group to discuss the planning process, especially when one or both parents are incapacitated. In other scenarios, however, the seniors do not wish to make their planning public. While it may be difficult for you and your brother to understand, even though you found the lawyer for your mother, she is the client. As such, her appearance, behavior, and comments during a consultation are confidences and secrets that a lawyer cannot reveal -- even if the lawyer believes that family members should be alerted to protect the client.

This means the lawyer is duty-bound not to divulge your mother's confidences unless she gives her permission -- and apparently, she hasn't. To allow you or your brother to sit in on client meetings without your mother’s permission would be a breach of the attorney-client privilege. In the legal profession, this is forbidden without the express consent of the client.

When dealing with elderly clients, the lawyer is often put in the middle because, in essence, the lawyer's work will affect the entire family. What is best for the client, however, may be difficult to determine because each family member may have a different agenda. Rest assured, however, that if the lawyer becomes uncomfortable with your mother's ability to properly assess the circumstances and act appropriately, the lawyer need not - and probably will not - prepare documents for her and may suggest certain interventions.

What are your options? If you and your brother are convinced your mother is no longer able to manage her affairs, you may choose to hire another lawyer – on your nickel -- who can ask the probate court to declare your mother legally incapacitated in a guardianship or conservatorship proceeding. This is a complicated and expensive process, as it should be to protect people like your mother. But remember: If you are unable to persuade the court, your relationship with your mother may be damaged beyond repair. Since dealing with aging adults can be difficult, families should hope and pray that the professionals who are injected into the situation are able to handle the intra-family issues appropriately.

Changing the NextStep gear: We, as Americans, have a constitutional right to refuse unwanted life-sustaining treatment. But each state has the right to establish its own standards for discontinuation of nutrition and hydration for those of us who are diagnosed to be terminally ill or persistently vegetative. Since there is generally a distinction between fluids and nutrition, on the one hand, and medical treatment on the other, it is wise to discuss your plans and intentions with your family and your doctor, and to sign documents that make your intentions clear and in accordance with state law.

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