This can be a trick question because if we are talking about an older family member who is mentally unimpaired, in other words still making and communicating reasonable decisions about his or her health and finances, then that elder would be the attorney’s client. The client is not other family members who may be present. When the family provides transportation to the law office for an elder, the attorney will need to confirm that no one is either trying to influence or actually make the elder’s decisions.
It is important to establish that every client, especially the infirm, are actually the ones who are making decisions about the details of their own estate planning. If it appears that someone else, however well-meaning, is playing too large a role in decision making, that can indicate “undue influence,” which can justify the attorney refusing to accept the work. Also, in cases where undue influence can later be shown to have occurred, estate planning can be undone by the court.
Our practice is for the attorney to meet alone with the prospective client, and after it is clear that capacity is not at issue and there is no undue influence, family members are allowed to join in the discussion, but only then if the elder expressly wants them to. So, initially the elder’s “ride” sits in the waiting room and is invited into the conference room only if the elder requests it and the attorney is certain that the prospective client is speaking for himself.
A very common indication of possible undue influence is when family members refer to what “we” want. The attorney will make it very clear that it is not the family that is doing the planning but the elders themselves. The elder is the prospective client, not the family members.
For such representation to occur and produce the desired results, prospective clients who are elderly yet have no mental incapacity issues need to consult with an attorney and the sooner the better. Such successful attorney/client relationship can produce an estate plan that is most likely to survive the challenges to come in later life, which may include incapacities such as dementia.
In that regard, mental healthcare powers of attorney can be especially helpful. More and more attorneys are providing mental healthcare provisions, which are optional to the standard healthcare power of attorney, and very well may avoid the need for guardianship later. Discuss this with your attorney.
So, when the family is concerned about the provisions made for an elder’s future, do not delay and do not confuse who the client is. Encourage your mother, father or other older relative or friend to take the initiative and discuss these issues with an attorney. If help is needed to make the call or to get to the attorney’s office, that is fine, but once the connection is made it is time to step back and let the elders speak for themselves.