ELDER LAW- MILLER FALL 2013
I. Definitions of Key Terms
a. Codicil – An addition or supplement that explains, modifies, or revokes a will or part of one.
b. Joint tenancy – The holding of an estate or property jointly by two or more parties, the share of each passing to the other or others on death.
c. Conservatorship – Court proceeding initiated to supervise management of the property and affairs of an incapacitated or incompetent person.
d. Involuntary conservatorship – An involuntary conservatorship is a legal proceeding in which someone other than the proposed ward files a petition to establish a conservatorship.
e. Guardian ad litem – A guardian appointed by the court to represent the interests of Infants, the unborn, or incompetent persons in legal actions.
f. Ex Parte Order – With respect to or in the interests of one side only or of an interested outside party.
g. Durable Power of Attorney – A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal.
h. Inter vivos gift – A gift or transfer made during one’s lifetime, as opposed to a testamentary transfer.
i. Ultra vires – Law beyond the legal power or authority of a person.
j. Ademption by extinction – The disposal by a testator of specific property bequeathed in his or her will so as to invalidate the bequest.
k. Probate – The official proving of a will.
II. Applicable MPRC Rules
a. MPRC 1.1 provides that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. In determining whether a lawyer has the requisite knowledge and skill in a particular matter, relevant factors include the complexity and specialized nature of the matter, the lawyer’s general experience in the area of law, the preparation and study the attorney was able to give to the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.
b. MPRC 1.2(a) provides that a lawyer shall abide by a client’s decisions concerning the lawful objectives of representation subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue.
i. Note: The client has ultimate authority to determine the purposes to be served by the legal representation, within the limits imposed by the law and the lawyer’s professional obligations.
c. MPRC 1.4 states: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, and (b) a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding representation.
d. MPRC 1.7 states that a lawyer will not represent a client if the representation will be directly adverse to another client, unless: 1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and 2) each client consents after consultation.
e. MPRC 1.14 states: a) when a client’s ability to adequately make decisions in connection with the representation is impaired somehow, the lawyer still needs to, as far as reasonably possible, maintain a normal client-lawyer relationship with the client and b) a lawyer may seek the appointment of a guardian only when he reasonably believes the client cannot adequately act in the client’s own interest.
i. Commentary to 1.14 states that if the lawyer represents the guardian as distinct from the ward and is aware of the guardian acting adversely to the ward’s interest, the lawyer may have an obligation to prevent or rectify the guardian’s misconduct.
III. Florida Constitution and Statutory Laws
a. FL Constitution Article I, Section 23 – Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
IV. Information-Gathering
a. Information and consistency are important. Better to have too much information than you need. Even if only for a limited engagement, must gather information to inform client of the best kind of representation for his/her needs. Might be held responsible if insufficient communications with client.
i. Be aware that although confidentiality applies to everyone in a firm, client may not feel comfortable sharing certain information with others. May feel insulated if not getting your individual attention, but can use your support staff to an extent (more cost-efficient).
ii. Could get power of attorney to access finances.
b. Online example of client information intake form:
i. Contact information (name, phone, email, address, occupation, employer name and address, SSN, birthday)
ii. American citizenship
iii. History of residency in other states
iv. Marital status/Children
1. If ended, how did the marriage end? Name of prior spouse.
2. Contact information of Joint Children, including address and whether they’re alive
3. Contact information of Children from another marriage
4. Contact information of Grandchildren
v. Living parents of each spouse
vi. Pets
vii. Who takes care of your finances if you die?
viii. Who takes care of your finances if you are incapacitated?
ix. Who will make your healthcare decisions if you die?
x. List of all real property assets, personal property assets, bank accounts, stocks, bonds, retirement plans, and life insurance (in all states).
xi. Mental conditions
xii. List of liabilities
V. The Engagement (husband and wife)
a. Don’t need extraordinary expertise, only need to pass the FL Bar to undertake such an engagement. You can always hire someone to help you. Required to give competent representation (can be what you know yourself or what you bring to the table by associating with others).
b. Client Interview: Meet with married parties jointly and separately. Must explain to parties individual/separate representation as well as joint representation so they can make a decision how to best proceed.
c. Nature of the Engagement
i. Joint representation: represent both husband and wife. Default arrangement. Appropriate only if H and W are joined in a common goal.
1. Don’t want joint representation if there is a conflict.
ii. Represent either individually
1. Should offer referral of representation to all other lawyers in area in practice
iii. Represent BOTH individually: Don’t do this. Professor does not see it possible to build a Chinese wall between representation of H and W.
d. Prepare an Engagement Letter to reflect the attorney-client relationship (cover your rear).
i. Engagement Letter should include:
1. Statement confirming dates of meetings/ phone discussions
2. Discussion of joint representation
a. Duty of confidentiality & loyalty (confidentiality applies to everyone in the law firm).
b. If representing jointly, should waive confidentiality to each party individually (anything said by one relevant to another will be revealed).
3. Discussion of individual representation
a. Statement of client choice
4. Services to be performed
5. Fees to be charged (basis for fees & factors that enter into the establishment of fees
ith anyone other than the client.
5. An attorney has the obligation of confidentiality to include material covered by attorney-client privilege as well as information that includes a client’s confidences and secrets even if the same information may be discoverable from other sources; an exception exists when a client has given informed consent to disclose.
iv. Caregivers and Other Unrelated Third Parties
1. An attorney will be punished when he does not advance the interests of the client.
b. The Disabled Client
i. Evaluating Client Competence
1. Lawyer must look at the client, and not family members , to make decisions on behalf of the client.
2. Lawyer would be wise to document his informal assessment of a client’s mental capacity and create a record in case the client’s capacity is ever an issue
ii. MPRC 1.14 (Client with Diminished Capacity)
1. When meeting a prospective client, an attorney may discern whether the client’s ability to make adequately considered decisions in connection with the representation is impaired. A lawyer has the following tools to aid clients who may have diminished capacity: 1) withdraw from the representation (could cause problems because it may adversely affect the client; not advisable), 2) serve as petitioner (or ask a third party) to seek a court appointed guardian, 3) seek to persuade the client to make “better” choices.
iii. Section 35 of The Restatement of the Law Governing Lawyers
1. Subsection 1 asserts that a lawyer must act in the best interests of the client.
2. Subsection 2 asserts that if a client is impaired, then the attorney should use substitute judgment in pursuing a matter within the scope of the representation; if no guardian is available for the client, then the attorney must pursue the matter using a reasonable view of the client’s objectives or interests as the client would define them if able to make adequately considered decisions on the matter.
a. Note, however, that a lawyer who acts reasonably and in good faith is not subject to liability if he chose not to use substituted judgment in representing a client the lawyer believes is impaired.
iv. Taking Protective Action
1. Issues that arise when an attorney debates taking protective action (i.e., establishing an involuntary conservatorship or guardian ad litem): 1) information that an attorney must disclose to either a judge or physician to determine capacity may be confidential (this is allowed under 1.14(b) to the extent necessary to serve the client’s best interests) and 2) dealing with a guardian ad litem that may not serve the client’s best interests (protective action may come into play).
2. When taking protective action, the action should be the least restrictive of the client’s autonomy that will yet adequately protect the client in connection with the representation.
3. While an attorney may petition for incapacity, it is not appropriate for the attorney to represent a third party petitioning for guardianship over the client because of 1) potential breach of client confidentiality and 2) conflict of interest.
