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Jewish World Review May 19, 2008 / 14 Iyar 5768 Lawyer bound to keep woman's legal affairs private By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: My 82-year-old mother has lived with me since our father died six years ago. He left everything to my mother. My sister and I are her only children and have been very close to her. But recently, Mom's behavior has become more secretive and erratic — to the point that I have been required to take family leave and some vacation time. This is difficult because I was divorced years ago and receive no support. Now, it seems every time we have a discussion, it turns into an argument. Mom threatens to leave her property to strangers every time something happens that gets her angry. We became concerned about what will happen if she does sign a will and then becomes incapacitated. We also believe we need her to sign a power of attorney, just in case. We were referred to a lawyer who came highly recommended as being proficient in the field, and I took Mother to see him. Surprisingly, the lawyer would not let me sit in on the interview or even talk to me so I could fill him in. After the meeting, neither my mother nor the lawyer will talk to me or my sister about what is going on. I thought the lawyer was working for our family. What can be done to protect us and our mother? A: With a greater percentage of our population getting older, situations as you describe are becoming more and more common. While we know it's difficult for you and your sister, the problem is that when you found a lawyer for your mother, she became the client, not you or your sister. In most circumstances, the elder-law attorney will ask the client if he or she wishes for family members to join in the consultation. If the client says 'no." the lawyer becomes powerless to include you or your sister in the decision-making process because, generally speaking, the appearance, behavior and comments of a client during a consultation are confidences and secrets that a lawyer cannot reveal. This means the lawyer is duty-bound not to divulge your mother's confidences unless she gives her permission, and she apparently hasn't done so. Therefore, to allow you or your sister to sit in on client meetings would breach the attorney-client privilege, which in the legal profession is forbidden without the express consent of the client, or in only very limited circumstances. In situations dealing with the elderly, a lawyer is often put in the middle because, in essence, the lawyer's work will affect the entire family. What is best for the client, however, is sometimes difficult to ascertain because each family member has a different agenda. Rest assured, though, that if the lawyer becomes uncomfortable with your mother's mental state, the lawyer need not — and probably will not — prepare documents for her and will even suggest certain intervention. On the other hand, if you and your sister are convinced your mother is no longer able to manage her affairs, you can hire yet another lawyer who can ask the probate court to declare your mother legally incapacitated. This is a complicated process, as it should be to protect the rights of people who may not need it, and you may not persuade the court that your mother has reached this point. This would thoroughly ruin your relationship with her, and she will never trust you again. Taking the NextStep: Changes in personality could well mean underlying medical issues that should be attended to. Your first step probably should have been to communicate with your mother's physician, given the changes in her personality that you describe. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2008, Jan Warner

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