Why Am I In the Waiting Room?

If you bring your parent to an appointment with an elder law attorney, you might want to bring a good book or your knitting.  This is because you may be sitting in the waiting room for most of the meeting.

The American Bar Association explains why in their pamphlet Why Am I Left in the Waiting Room?, which outlines the “Four C’s” of elder law ethics that lawyers are required to follow:

Client Identification: The most important thing for an attorney to convey in the initial meeting is “who is my client.” This needs to be made clear to everyone in the room. The “family unit” or “the situation” cannot be my client.  If you bring your mother in to have her Will drafted, your mother is my client. Even if you are paying the bill. Even if you made the appointment. Even if she tells me in our meeting that she wants to disinherit you.

Conflicts of Interest: Lawyers must avoid conflicts of interest.  Many times, the parents and the children will have different interests in the outcome of a situation.  It may be in the best interest of the child for the parents to gift them large sums of money, or a house. However, it may not be in the best interest of the parents to make these large gifts when they may need the resource to provide for their own care and standard of living.  An attorney could not represent the children and the parents in this situation.

Confidentiality: A lawyer must keep information and communications between her clients and her confidential.  I cannot share any information with my client’s family unless they give me specific permission to.  Sometimes, an adult child will call me to find out where things are in the process, or question why their parent made a certain decision.  I cannot share this information with the child, and they would be better served to ask their parent directly, or, in some cases, mind their own business.

Competency: Many times a child will want to accompany their parent or parents into the meeting because they think their parent won’t understand what is going on, or they are afraid their parent will leave out important information.   However, assessing the client’s capacity if part of getting to know the client.  By meeting privately with the client, I am able to find out if they can explain the problem or express what they need. If someone else is in the room answering the questions, I have a hard time determining if my client understands.

There may be times where I meet with my client privately, and then they ask if their child can come back in the room so that I can explain to them what the plan is. This is fine, since it is done after the meeting with my client and it is with my client’s permission.

These rules make a lot of sense if you think about it – a Will or Power of Attorney can be challenged if the client was under undue influence when it was signed. This might be of special concern to families where one child is the primary caregiver of the parent, and the primary beneficiary under their Will.  By staying in the waiting room, you are less likely to be accused of exerting undue influence over your parent.

So, feel free to call and make the appointment for your parent, and even drive them here. Just don’t feel slighted when I ask you to wait in the waiting room.  I promise there will be interesting things to read.

See also: PA Elder, Estate & Fiduciary Blog.