Stan Rule, a lawyer in British Columbia, presented his paper entitled Undue Influence: Identify, Minimize the Risk, Document the File, at the Legal Education Society of Alberta Capacity and Influence Course this past March.
His presentation focused on the practical steps that lawyers may take in order to recognize circumstances in which their clients may be subject to undue influence as well as to provide helpful evidence to the court if later on a Will they drafted or a transaction they assisted with is challenged on the grounds of undue influence.
He also referenced a helpful pamphlet prepared by the American Bar Association (“ABA”) Commission on Law and Aging on ethical rules pertaining to elder law, and why it is important for a lawyer to meet with a client one-on-one.
The pamphlet outlines the ethics rules that set out a lawyer’s obligation to consider actions to protect a client who is unable to make decisions due to diminished capacity and who is at risk of serious physical, financial or other harm.
In deciding what steps to take, lawyers must be guided by the client’s wishes, values and best interests, and should do their best to intrude as little as possible on the client’s right to make decisions.
Lawyers should practice in accordance with the Four C’s of Elder Law Ethics:
- Client Identification: the client is the person whose interests are most at stake in the legal planning or legal problem, and lawyers must make it clear who their client is.
- Conflicts of Interest: lawyers must avoid conflicts of interest, which often means that in most situations, a lawyer will only represent one individual.
- Confidentiality: lawyers must keep information and communications between clients and the lawyers confidential. In other words, lawyers cannot share client information with other family members without the client’s approval.
- Competency: lawyers have special ethical obligations when working with clients whose capacity for making decisions may be diminished. They must treat the impaired person with the same attention and respect to which every client is entitled, which includes meeting with them privately and giving the client enough time to explain what he or she wants.
For further information on Stan Rule and relevant case comments, please visit Stan Rule’s Blog, “Rule of Law”.