By: Rebecca Proctor, Elder Law Attorney (941-364-2417)
As a practicing attorney representing many elderly clients, I am cognizant of my ethical duties to my clients. Among the important influences that affect my professional ethics in the practice of law are the Ethical Rules that are mandated by the Florida Bar.
Four Ethical Rules that I believe directly affect the representation of the elderly client are:
1. Rule 4-1.14 Clients under a Disability
2. Rule 4-1.2 Objectives and scope of Representation
3. Rule 4-1.6 Confidentiality of Information
4. Rule 4.1.5 Fees and Costs for Legal Services
How does the first rule “Clients with a Disability” involve ethics in my practice? Disability can mean elderly clients with physical or mental disabilities and incapacities within varying degrees. Many times I have persons come into my office that may be a little slower in focusing or reasoning or may have trouble understanding the legal concepts that affect them. I must be aware of that and be able to explain those legal concepts or rules that affect them in a way that they can understand their legal problems and are able to make the best and most beneficial decision for themselves. I cannot just tell an individual what I think is best for them, but must let them make the decisions for themselves.
Likewise, being able to explain the objectives and scope of representation to a client who is very aged or partially incapacitated can be a challenge. When a person must follow a legal rule or procedure in order to accomplish their objectives, it most definitely involves having to use one’s professional ethical judgment and discretion. Being able to thoroughly explain the objectives of your legal representation, taking the time for someone to understand and also knowing if that person doesn’t really understand but may just be agreeing to whatever you say are some of the concerns that one must be aware of in their representation of the elderly. I must by my following my moral code and professional ethical rules provide a client who has some physical or mental disability with as much information and allow them as much individual autonomy that I would for a client who is not impaired or has no disability.
As an attorney, I am bound by the Rule of Confidentiality. Many times elderly persons have individuals in their family that they do not want to know their business, they do not trust them, but they may have to depend on that family member in their daily living. For example, I had an 82 year old client who owned a home and who also lived with the daughter in that home. She wanted to leave the home to her daughter when she passed, but she did not want the daughter to know about the gift before she passed, nor did she want the daughter to know how much money or what kind of investments she currently held. The daughter had a history of impersonating her mother in order to obtain personal information on the mother. My elderly client and I developed a system of key words for our telephone calls so I would know if it was in fact my client or her daughter calling me. This was our way to develop a method to maintain client confidentiality.
The Rule relating to the charging of fees and costs for legal services is directly involved with having an ethical practice. I cannot charge exorbitant or excessive fees. A client that has a disability and who may not know what a reasonable fee for a legal services would be, must be dealt with ethically. As you could imagine, if one does not practice ethically, a client with a mental disability or incapacity could be easily taken advantage of or an unethical person could collect a larger fee knowing that the elderly client would never know or suspect.
In conclusion, these ethical rules that I have set forth in this article can easily be applied to most all professions. In business and practice,you have to understand the inabilities or disabilities that elder persons may have. You must be sure to thoroughly explain and describe what services or products you are going to provide to them. Further, one should always keep the transactions confidential and you must never take excessive fees for your services or products just because you can, even though there is not a professional ethical rule that binds you.