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Attorney ethics and estate planning for elders

When representing elderly California clients, attorneys have ethical responsibilities to which they must adhere. This often means that the client's family members are excluded from the estate planning process. As such, these family members may become concerned because they have not been included. However, you should know that there is a reason for this and it is in the best interests of your loved one.

These ethical duties are known as the "four C's of elder law ethics." In most cases, once concerned family members understand the reasoning behind an attorney's actions, they feel better about being excluded from the process.

The first C equals client identification: When an elderly person comes to a lawyer for estate planning guidance, he or she will be identified as the client, not his or her family members. It is this person and only this person the attorney is charged with representing.

The second C equals conflicts of interest: Attorneys are obliged to avoid a conflict of interest. What this means is that when more than one party has an interest in the property or estate, an attorney may only represent one party of these parties. In this case, it is the elder seeking estate planning services.

The third C equals confidentiality: As always, attorneys are ethically obliged to protect the confidentiality of clients. This means attorneys may not share the information with the client's family without express permission.

The fourth C equals competency: If an elderly client has a diminished capacity for making decisions, it is still his or her legal right to meet privately with an attorney. Further, private meetings with the client enable the lawyer to objectively assess the client's capacity to make decisions.

If you have been left out of estate planning meetings between your elder loved one and his or her lawyer, rest assured that the attorney is still working for your loved one's best interests.

Source: American Bar Association, "Why Am I Left in the Waiting Room?," accessed April 05, 2016

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