By Shannon O’Neill Jones
Be open and honest with your clients. Explain your concerns to them. Give them specific examples of behavior that led you to this conclusion and ask them if they have noticed any changes in their behavior or if they have recently been evaluated by a doctor. Your client may allow you to help them. Ask your client if they have any estate planning documents, such as a financial power of attorney or a trust. Discuss with them the option of having a family member, trusted friend, or professional fiduciary assist them. If the client gives you informed consent to discuss their situation with a loved one, make sure that you do not disclose more information than is necessary to provide them with the help that they need. If the client lacks the ability to give informed consent to the preventive measures, then you may not disclose any information, even if you believe it is in the client’s best interest.
If your client has a California Uniform Statutory Form Power of Attorney or a trust, it may grant a named agent or Successor Trustee the authority to act on their behalf with respect to claims and litigation, so their named agent may be able to pursue a legal action on the client’s behalf. If the client does not have estate planning documents, a conservatorship or a court-appointed guardian ad litem may be necessary. However, an attorney may not institute a conservatorship proceeding on a client’s behalf without the client’s informed consent. A client that is incompetent may not be able to give informed consent to initiate a conservatorship proceeding, but they may be able to give informed consent to have a brief discussion with a family member who can step in and assist them. Every situation will be different.
Shannon O’Neill Jones is the owner of Weber & O’Neill and specializes in Wills and Trusts and Probate law.