Date of this Version
Court Review, Volume 53, Issue 2 (2017)
Surrogate decision-making arrangements are ubiquitous. Surveys suggest that the majority of older Americans have a surrogate decision maker who is empowered to make decisions on their behalf, most commonly an agent appointed under a power of attorney (“POA”) for finances or for health care.1 The result is that attorneys frequently represent clients who have a surrogate decision maker with the authority to make decisions on the matter underlying the representation.
From the perspective of the attorney, such representations raise several important questions. First, from whom should the attorney take direction? Should the attorney look to the surrogate or to the person for whom the surrogate has been appointed? Second, with whom should the attorney communicate? Should the attorney share information with the surrogate, the individual who appointed the surrogate, or both?
From the perspective of a court, such representations also raise important questions. If an attorney claims to represent a principal for whom a surrogate has been appointed, should the court expect the attorney to take direction from the principal and communicate with the principal? If the attorney is not doing so, should the court treat the principal as an unrepresented party? In addition, if the attorney is not doing so, should the attorney’s behavior be seen as a red flag suggesting exploitation?