Elder Law News

Elder Law Attorneys Frequently Face Ethical Issues Arising Out Of Their Specialized Practice Of Law

Often these questions are related to the diminished capacity of a client. This article will briefly explore some of the ethical issues that may arise when a lawyer suspects that a client has become incompetent or unable to make adequately considered decisions. These ethical issues may include questions of conflicts of interest due to the involvement of children, caregivers, or the like in consultations with the lawyer, or because of successive representations, or because the person paying for services may not be the client. Other ethical issues may be related to the scope of the attorney’s representation, communicating with unrepresented parties, and confidentiality issues.

The situation may develop in this way. A lawyer has represented a client for a number of years with respect to estate planning issues. The lawyer is contacted by the client’s adult child, who believes that the client is becoming incapacitated, and may be at risk of harm from a caretaker whom the child believes is obtaining undue influence over the client. The child asks the lawyer for assistance in taking steps to protect the client, including possibly obtaining the child’s appointment as guardian of the client. At about the same time, the lawyer receives a letter from another attorney, enclosing a form signed by the client discharging him. The new attorney is demanding that the lawyer turn over the client’s file to her, and has directed the lawyer not to contact the client.

A lawyer is obligated to withdraw from the representation of a client when discharged. Mass. R. Prof. C. 1.16(a)(3). A lawyer is also required to return the former client’s file and other property within a reasonable time following the client’s request. Mass. R. Prof. C. 1.16(e).

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	Did You Know?
	Medicaid does not provide medical assistance for all poor persons. Even under the broadest provisions of the Federal statute (except for emergency services for certain persons), the Medicaid program does not provide health care services, even for very poor persons, unless they are in one of the designated eligibility groups. Low income is only one test for Medicaid eligibility; assets and resources are also tested against established thresholds.