Dealing with 3rd Parties – Elder Law Ethics

When the BCCEAS staff lawyers provide legal advice and assistance to older adults, the older adult’s children or close friends may have accompanied them to our clinic.   There may be an awkward moment when the adult child or friend starts to come into the interview room with the older adult.  The child or friend may be playing an ongoing and supportive role in the older adult’s life, and may even have arranged this legal appointment in the first place.  But the lawyer may want to exclude them from the interview, at least at first.

There are important reasons for this, that relate to the ethical duties of our lawyers:

  • it is very important for a lawyer to be clear about who the client is;
  • the lawyer needs to know whether the older adult is competent to give instructions to the lawyer (has “legal capacity“);
  • they need to determine whether there are any potential conflicts of interest between the older adult and those assisting them; and
  • it can also be very important to maintain confidentiality in some matters, especially if any sort of solicitor/client privilege needs to be claimed later on.

We want to be clear who our client is, and provide them with legal documents that cannot be challenged later because of allegations incompetency, or ‘undue influence‘ by a child or close friend.  Documents that can “stand up in court.” We hope that family members and friends want the same result.

The American Bar Association has produced an excellent brochure discussing these issues, entitled Understanding the Four Cs of Elder Law Ethics  Click on the title to view a copy.

Autonomy versus Dependency

Read the following BC CEAS Article on Autonomy vs Dependency