When I first opened my law practice twenty-five years ago, I knew that I would concentrate in one area—elder law. There are many benefits to concentrating your practice in one area, but to me, the biggest benefit is that everything I do helps me hone my skills in this one area. After twenty-five years, I can confidently say that when it comes to elder law, I’ve seen it all … certainly, most.
One common theme that I see is family members of clients who call my office asking for advice that sometimes is contrary to the stated intention of my client in the client’s estate planning documents (a Will, a trust) that I drafted. The conversation probably goes something like this: “I’m the child who takes care of mom. My brothers do nothing. It’s not fair that my mom’s documents leave everything equally to her children when I’m doing everything. How can we change this?” To which I might say, “Is mom mentally competent.” To which the child calling my office replies, “No.”
Clients (and my client is typically the elderly person, the parent) often come to my office with their children, some or all of their children. Coming to my office with other family members is fine right up to the point when it isn’t, and it typically isn’t when the child wants to express his or her opinion of what mom should do that is contrary to mom’s other children.
I understand that if mom has four children, one or two of those children often provide all of the care and the other children do nothing (other than complain about the care the caregiving child is providing). It’s ironic and sad. And it happens all the time.
“but I must do what my client expresses to me as her intention”
But as an attorney, I have to represent one person’s interests, and in my case, that’s typically the elderly person, mom, not the children. That is why I am known as an elder law attorney. The caregiver child may have a point. Perhaps mom should leave the caregiver child more, but I must do what my client expresses to me as her intention, for instance, everything equal to all four of my children.
If years later, the child calls my office and asks me how the child can change mom’s estate plan, I can only tell them to have mom call my office. If mom is now mentally incompetent, then my position must be that I cannot help mom change her documents because mom lacks mental capacity to change her documents, and I cannot help you (the child).
On social media sites, I will often see people say, “I used Mr. Callinan’s services to draft a trust (or a Will) ….” When I search my client database for the person’s name who is making the post, I do not find the person’s name. The person has never been my client. Sometimes, the person is the child of a former client, and I may not have even drafted a trust or a will for the former client.
“I think to myself, Is the person who is writing the post confused or just lying?”
I think to myself Is this person who is writing the post confused or just lying? I’d like to think the best of people, so I assume that they are confused, but if the person is confused, that is scary for me as an attorney. I always have my clients sign a retainer agreement. The agreement identifies me as the attorney and my client (the elderly person) as my client. The children who attend the meeting or who call my office (sometimes years later) are not my clients.
As long as everyone is on the same page with the intentions mom is expressing to me (“I want to leave everything to my four children equally”), then all is good. But the moment the child who is not my client begins to speak in a manner that is contrary to my client’s stated intention, there is a problem. When a lawyer gives a person advice, that person is a client of the lawyer, so a lawyer cannot tell mom one thing and the child another thing. That would create a conflict of interest, and a lawyer cannot engage in a conflict of interest.