Ethical Issues in Elder Law

Last week I had the pleasure of conducting an ICLE webinar with Carol Johnston, Esq., Secretary to the Advisory Committee on Professional Ethics. Carol informed us of many ethical issues relating to Elder Law. I am giving one example to point out the overriding principle in the ethical area. That is, although you may have a conflict, the conflict may be waived. The seminal issue is should you waive the conflict. For example, suppose there is a child who provides care to a parent for the required two-year period and the home can be transferred to the child without Medicaid planning. Further suppose, that the child is one of several offspring who are beneficiaries under the client's will.

The ethical issue is should you represent the client and the children. Carol pointed out that although the issue may be waived, it might be prudent not to do so. That is, if you represent a disabled child and a transferor, the remaining children might challenge the transfer and you would be vulnerable to an ethics complaint. That is, there is a presumption when a disproportionate distribution is made to one individual, that undue influence was exercised.

When counsel is presented with a conflict, the issue is not whether the conflict can be waived, but whether it should be waived. Such a principle is overriding in the Medicaid area.


Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© January 2011, Post 132