Elder Law News

Guardian Or Other Fiduciary Is Appointed To Represent The Client, The Lawyer Should Look To The Court Appointed

The lawyer also cannot use confidential information relating to the prior representation of the client to the disadvantage of the client, or for the advantage of the lawyer or a third party, such as the child, without the client’s consent after consultation. Mass. R. Prof. C. 1.9(c). However, the lawyer may, and in certain circumstances must, disclose information regarding the client’s preference for a particular guardian, as where the client has nominated a person to serve as guardian by the client’s durable power of attorney. See Guardianship of James A. Smith, 43 Mass. App. Ct. 493 (1997) (when a principal has nominated his future guardian by durable power of attorney, the Probate Court must appoint the person so nominated in the absence of good cause or disqualification, and the person so nominated is entitled to notice of a hearing to appoint a guardian of the principal).

If a guardian or other fiduciary is appointed to represent the client, the lawyer should look to the court-appointed fiduciary to make decisions on behalf of the client. See Mass. R. Prof. C. 1.14, comment [2]. The lawyer does not have a continuing ethical obligation to represent the ward’s interests after the guardian is appointed. Matter of Hocker, 439 Mass. 709 (2003) (Mass. R. Prof. C. 1.14 imposes no affirmative duty on a lawyer appointed by a judge during guardianship proceedings to continue to represent her client after the judge has adjudicated the client to be mentally incompetent, appointed a permanent guardian for the client, and vacated the appointment). However, the lawyer may have continuing ethical obligations to the client, including the obligation to preserve the client’s confidences pursuant to Mass. R. Prof. C. 1.6, subject to the exceptions enumerated in that rule.

The key to following the ethical rules discussed above is to focus on who is the client. Even when a client becomes incapacitated, the lawyer remains obligated to treat the client as a client under the ethical rules.

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	Did You Know?
	Estimated that 820,000 elders became victims of elder abuse in 1994 The National Aging Resource Center on Elder Abuse (now the National Center on Elder Abuse) estimated that in 2004 there were 820,000 elders became victims of elder abuse. 106 percent increase in the number of reported cases between 1986 and 1994, from 117,000 to 241,000.