Law Tips: Beware of the Potential for Conflicts of Interest With Your Elder Law Clients, Part 2

Welcome back to Law Tips as two of our Elder Law faculty members hone in on key ethics concerns. Matthew C. Moore, Fechtman & Moore and Allen Reece, Frank & Kraft, both from Indianapolis, have additional insights to share this week on the potential for conflicts of interest in representing the elderly or disabled client. Last week’s discussion of the duties and responsibilities of attorneys in joint and separate representation is below, just in case you missed reading it.

Non-client, Family Member Involvement
In many situations the elder law attorney will likely have a non-client family member who is involved in either the estate planning process, a Medicaid plan, guardianship, or other issue involving their client. In these situations National Academy of Elder Law Attorneys (NAELA) recommend that this person be treated as an unrepresented person, but encourages their involvement in the client representation so long as the attorney determines it is consistent with the client’s wishes and value, and the client consents to their involvement.1

The attorney must be very careful to look for undue influence from these individuals. The attorney should look to see if the client appears to be doing something out of the ordinary or that would provide a bigger benefit to the unrepresented person. If this is the case, the attorney should proactively take steps to assess whether this person is being improperly influenced. The attorney may meet alone with the client and explain his or her concerns, and may discuss the attorney’s concerns with other authorized individuals. The attorney must be careful not to release confidential information during the course of this investigation unless it is specifically authorized.

Representation of a Client Who is a Fiduciary
An attorney may represent a client who is acting as a power of attorney, trustee, guardian or some other fiduciary capacity. The attorney should outline and ensure that the client is aware that the attorney has duties to both the fiduciary and that the attorney is ultimately governed by the known wishes and best interest of the principal.2

This situation is unique in that the attorney may not technically represent the principal but would still owe ethical and legal duties to the principal. Again, it is advisable to address these issues in writing to the client at the initial

stages of the representation. The attorney should advise the fiduciary, that the attorney will not be able to assist them if they take any action which the attorney would determine is detrimental to the principal.3 Further, it would be advisable to inform the client that the attorney may even need to release confidential information in certain circumstances as governed by the Indiana Rules of Professional Conduct

The Role of the Attorney
As the population of Americans over the age of 65 grows the need for elder law attorneys will also grow. Many of our clients will suffer from physical or cognitive impairments, chronic illnesses, and potentially be under the undue influence of someone in their life. Add to this the changing dynamics of our population which provides medical care for these individuals (thus increasing the length of their life), the increasing presence of blended families, and all of the various legal changes that will continue to occur, and it is easy to see that the ethical dilemmas facing lawyers will continue to become more challenging.

The attorney owes the client the professional duties of competence, diligence, loyalty and confidentiality. 4 The Preamble to the Indiana Rules of Professional Conduct, paragraph 1, states that the lawyer is a representative of the client, an officer of the legal system and a public citizen who has a special responsibility for the quality of justice. It is a lawyer’s duty to provide the client with an informed understanding of the client’s legal rights and obligations and explain the practical implications. Id. paragraph 2.

1 National Academy of Elder Law Attorneys (NAELA): Aspirational Standards for the Practice of Elder Law, dated November 1, 2005, pg. 7.
2 Id. at pg. 14.
3 Id.
4 Id. at pg. 7.

Many thanks to Matthew Moore and Allen Reece for their valuable contributions to Law Tips. The seminar that contains the complete presentation by these faculty members as well as other experts in the field is available through our On Demand CLE presentation of the 2014 Elder Law Institute.  You choose the time and place. We will assist you in the easy setup.

Also, remember to mark your calendar for the Live Elder Law Institute on October 15-16, 2015.

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About our Law Tips faculty participants:
Matthew C. Moore, partner, Fechtman Moore, Indianapolis, focuses his practice on estate and trust administration, Medicare set aside issues, Medicaid planning, and estate planning for families with special needs children. He graduated from Franklin College in 2003 with a Bachelors of Arts Degree in Political Science. Then received his Juris Doctorate in 2006 from Indiana University School of Law-Indianapolis.

Allen Reece, Frank & Kraft, P.C., Indianapolis, focuses his practice on the fields of estate and elder law planning. Mr. Reece is a member of the Indiana State Bar Association, including the sections of Elder Law and Probate, Trust, & Real Property; the American Bar Association; the National Academy of Elder Law Attorneys; and the American Academy of Estate Planning Attorneys. He is a frequent speaker at seminars. Allen was formerly Vice President at Deutsche Bank Alex. Brown

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

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