How Do Lawyers Handle Potential Conflicts of Interest in Family Situations?

 In Long-Term Care Planning

Question:

My mother is 81 and was recently diagnosed with mild dementia. I’m 58 and live on the opposite side of the country. My brother lives an eight-hour drive from my mother. My mother has named my brother and myself as co-agents on her durable power of attorney and medical directive. I’m prepared to move in with my mother and take care of her as her needs grow, but I cannot risk my own financial security to do so. I feel that I should be paid something under a caregiver contract. I feel that my brother should receive a gift as well. In addition, my brother and I need the flexibility to sell the house and have my mother move to a nursing home when and if I can no longer care for her. I am concerned that if I present these issues to an elder law attorney, she will feel that I’m seeking to take advantage of my mother.

Photo by Oren Atias on Unsplash

Response:

Your situation is difficult but not that unusual. It is important that you and your brother are cooperating and appear to be on the same page. In that case, most attorneys will work with you to develop a long-term plan for your mother’s care and preservation of assets for the family. It’s important that you and your brother meet with the attorney together and that you put your agreement and plan in writing so that there’s no confusion or differing memories in the future.

The attorney will also likely want to meet with your mother without the two of you both to assess her competence and to make sure that the plan is in line with what she wants. Your mother does not need to understand all the components of what may be a complicated and multi-faceted plan. But the attorney needs to feel comfortable that your mother wants you to move in with her, trusts you and your brother, and wants to compensate you and preserve assets for you and your brother.

There are some elder law attorneys who are doctrinaire about only representing the senior and would require you and your brother to have separate counsel. But most see themselves as representing the family or, as Louis Brandeis explained in his Senate hearings to be confirmed as a justice of the U.S. Supreme Court, they are “counsel to the situation.” Of course, if true conflicts developed among you, your mother and your brother, you would then need separate counsel.

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