“My mother needs a Will and a power of attorney,” the woman’s voice says over the phone. “When can I’m come see you.”

In traditional attorney-client relationships, the attorney meets directly with his or her client. The “client” may be a fifty year old man who was injured in a car accident or the president of a small business, but the lawyer-client relationship is established by the client, with the lawyer and client meeting face-to-face and discussing the various issues inherent in the representation.

There is rarely a question about the client’s mental ability to enter the relationship, so the lawyer and client are free to negotiate the terms of that relationship, establishing fees and the parameters of the work to be performed. Although family members and friends may, at times, be curious as to the scope and content of the relationship, no one disputes the client’s abilities to hire the lawyer.

Due to confidentiality requirements inherent in the lawyer-client relationship, the lawyer cannot disclose the terms of representation to third parties without the express consent of the client, and the client is free to remain mum, if he or she chooses.

In Elder Law, however, many of these traditional characteristics of the attorney-client relationship are missing or, at the very least, dissimilar from the traditional attorney-client relationship. Many older individuals are dependent upon a family member or friend. They need some one to drive them places, to schedule appointments for them. They feel more comfortable approaching a lawyer if some one they know accompanies them to the lawyer’s office.

These patterns of behavior are creating a lot of confusion for lawyers engaged in the practice of Elder Law. For instance, the hypothetical call that I started this column with probably happens in hundreds of law offices each and every day.

The lawyer must then ask if he should meet with the elderly woman’s daughter to discuss the terms of a Will and power of attorney. Assume that the daughter comes to the lawyer’s office and tells the lawyer that her mother has four children; that none of the children get along; that the mother is very sickly and lives with the daughter who is before him, depends on this daughter for her health and well-being; and that the mother wants to disinherit all of the children except this daughter and wants to name this daughter her agent for financial decisions through a power of attorney.

Should the lawyer draft the documents for the client, the mother? What if the mother wasn’t even at the meeting? What if the mother was at the meeting and agreed with everything the daughter told the lawyer?

Some lawyers, and some people who aren’t lawyers, would probably say, “No! Absolutely not.” And, others may see no problem in drafting the documents the way the daughter, or daughter and mother, have indicated. Me, I think it depends.

Certainly, the mother is free to disinherit one, some, or all of her children. Certainly, the mother is free to name one child as her agent for financial decisions. I think the real questions are: Does the mother have the requisite mental capability to understand the consequences of her actions in signing those documents? And is the mother the victim of undue influence from the daughter who contacted the lawyer’s office?

If mom has the mental capability and is not the victim of undue influence from the daughter, then the proposed plan is acceptable and the documents can be drafted. If mom doesn’t possess the requisite mental capacity to understand her actions – because of dementia or Alzheimer’s – or if the daughter is unduly influencing her, then the documents cannot be drafted.

Either way, the lawyer must ultimately make the decision to draft the documents or not. In making the decision, the attorney may want to engage the assistance of a mental health care professional, such as a psychiatrist, to assess the mother and make an independent, medical determination as to her mental capabilities. The questions then becomes – will the client pay for the doctor’s examination or will the client simply find another attorney who doesn’t have such compunctions? But that’s not this lawyer’s concerns. There are a lot of lawyers out there, and sometimes compunctions aren’t what they use to be.

At all times the lawyer must bear in mind that the mother, and not the person who call his office, is the client. And, the duties inherent in the lawyer-client relationship are, ultimately, owed to the mother above all others.