How Do Lawyers Handle Potential Conflicts of Interest in Family Situations?
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 both.
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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If the attorney must make sure 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,” then what exactly is the purpose of the durable power of attorney? The durable power of attorney is supposed to legally allow me to make decisions about my mother’s assets in her stead. But it sounds like you’re saying the durable power of attorney can’t be used if my mother doesn’t agree to the specific action I might use it for. At what point in the disease of dementia does the elder law attorney stop giving credence to the brain-damaged person’s irrational decisions? Or in other words, why did I pay $650 for a durable power of attorney and advance medical directive? Maybe I should’ve saved that $650 for the guardianship process?
An attorney is duty bound to do her best to carry out the wishes of the client, even one who is somewhat demented. If the attorney believes that the client is not acting in her own best interest, the attorney can take steps to protect the client. Many situations are not black and white. When an agent under a durable power of attorney determines that it’s best for the client to pay the agent to take help her, this clearly raises challenging issues. Who is most appropriate to provide the necessary care? How much care is necessary? At what rate should the agent be paid? If all interested parties can agree on a course of action, that can avoid hard feelings and possible litigation in the future.