QUESTION: Is it ethical for an Elder Law Attorney to have his fees paid by a client’s daughter, while preparing documents that benefit that daughter?
ANSWER: This is a very complex issue that is not uncommon for Attorneys practicing in the area of Elder Law. Frequently a large portion of the interaction about an elderly Clients matters are handled by a designated child or third party. This is just the reality of dealing with someone who has failed to plan properly and no longer has the energy or physical ability to actively participate in every step of the process. The payment of legal fees for someone else is also not uncommon. Children frequently pay for the planning and documents for their elderly parents because they are the ones who will be left to deal with the problems.
The question implies possible lack of capacity. First capacity is generally a legal determination not a medical one, whether legal capacity exists depends also upon what they are doing as there are many forms of capacity. Age or a diagnosis of an illness do NOT establish lack of capacity. Each type of legal capacity has set elements which must be met to determine capacity.
The disparity in treatment in types and amounts of bequests is also very common especially with the elderly. Unlike a younger couple who make equal distributions, the elderly frequently change that division. Whether it is because one child has spoken to them in 10 years, one child has been using them as the bank forever, one child loves them but sees them infrequently because they live far away, or one child has lives nearby and does their shopping, takes them to all their doctor visits, helps them deal with matters they no longer wish to do, there are many reasons for an unbalanced division.
In my office, in most types of cases we make it clear from day 1 that we represent the senior not the children. As a matter of course, my office takes precautions to prevent actual or the appearance of undue influence or lack of capacity. So if the senior proposes a radical shift from prior plans, has received a diagnosis of dementia or other illness or shows signs of loss of cognitive ability, or if the family relation is volatile, then we provide letters for the seniors physician to complete where the physician is required to give an opinion on the senior in regard to each of the required elements of capacity. At the time of the first meeting we always will spend a good portion of the meeting with just the senior, the attorney and a third member of the firm’s staff to take down notes and observations. At that point we asks questions designed to find factors suggesting potential undue influence, lack of capacity or a variance or uncertainty in regard to the senior’s distributive plan.
If we are comfortable that the senior has capacity and the plan presented is what the senior desires, then we will go forward with the plan but will also include specific separate written acknowledgements of any actual or appearance of conflict of interest, undue influence or lack of capacity which must be signed by the senior, other relevant family members, and usually of member of my firm.
So while on the face of it your facts appear to suggest some undue influence by your sister I would talk to her if you get along or to your father and discuss your concerns. Perhaps the Attorney is skilled in the area and has taken proper safeguards to make sure the plan is what your father wants and is not being controlled by your sister. If you cannot resolve it directly, then you should immediately retain an experienced Elder Law Attorney to assist you in determining and implementing the appropriate action whether it is an out of Court resolution or to bring an emergency guardianship proceeding to prevent your sister from continuing any undue influence and to have the Court determine any document prepared to be of no effect. If there is evidence indicating that the prior Attorney knowingly assisted your sister in any improper conduct, then file the appropriate complaint before your State Attorney ethics Board.
Today’s Answer was provided by James C. Siebert, Esq., from the Law Office of James C. Siebert & Associates from Arlington Heights, Illinois.