Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers

Abstract

Attorneys frequently represent clients who have a surrogate decision-maker with authority to make decisions on the matter underlying the representation. Such representations raise important questions for both attorneys and the courts in which they appear. Key questions include: From whom should the attorney take direction? With whom should the attorney communicate? If the attorney is taking direction from the surrogate decision-maker and not the principal, when should the court treat the principal as an unrepresented party?

This article provides answers to these challenging questions, thus providing both courts and attorneys with much needed guidance. Specifically, the article considers two types of surrogates: 1) agents appointed pursuant to a power of attorney for finances, and 2) guardians or conservators appointed by a court. In doing so, it seeks to inform the courts about expectations for attorney behavior so that courts can be confident that the attorneys appearing before them actually represent the persons whom they allege to represent, and can identify situations in which the attorney may be facilitating exploitation of a vulnerable person.

Keywords: Legal Ethics, Guardianship, Powers of Attorney, Surrogate Decision Making, Courts, Disability Law, Professional Responsibility

JEL Classification: K10, K30, K36, K40, K41