The first ethics issue is to define who is the client. The client is typically the senior adult in need of executing estate planning documents to ensure the proper transfer of assets upon passing or incapacity. This can often be confusing, especially if the adult child is paying for the attorney’s fees. Distancing an adult child from the conversation with his or her parent- who is the actual client of the attorney—is an ethical consideration in representing the client(s) properly.
One of the fiduciary duties that an attorney owes to a client is the duty of confidentiality. A fundamental principle of an attorney’s relationship with a client is that the attorney must not reveal any information related to the representation without the consent of the client. Building a trusting relationship is essential in ensuring that full disclosures are made, especially information critical to the legal matter. For this reason, it is generally best to meet with the client alone and have the adult child remain in the waiting room at least for some portion of the meeting.
The duty of confidentiality may be waived by the client. In the example above, parents are free to waive confidentiality and request that the adult child be present during the consultation.
However, it is best for the elder law attorney to meet with the parents alone initially to discuss the concept of confidentiality so that the parents can provide informed consent to such waiver. For more information on estate planning in the Greater Baltimore area, please contact Stouffer Legal at 443-470-3599.