PROFESSIONAL RULES OF CONDUCT
Attorneys are often the first line of defense for alleged incapacitated persons (“ AIPs ”) in Florida . We are usually one of the first people to receive phone calls from concerned family members about elderly relatives . If you have not already fielded a call from an elderly client ’ s child , who is fishing for information about their parent and trying to determine whether you believe that their loved one is incapacitated , you probably will at some point during your career .
To be prepared for these difficult conversations , you must know what you can – and cannot – say , and what your responsibilities are under the Florida Rules of Professional Conduct . Additionally , if guardianship proceedings are filed , you should be aware of the statute that governs substitution of counsel for your client , the AIP , and what not to do before filing a notice of appearance . It is my hope that the overview and case scenario below will assist you during your first ( or next ) client incapacity situation .
Applicable Professional Rules of Conduct
When confronted with a family member seeking information , you will need to consult Florida Rule of Professional Conduct 4-1.6 . Subsection ( b ) states that you must reveal confidential information to prevent death or substantial bodily harm to self or another , or to prevent a crime . Subsection ( c ) states that you may reveal confidential information if you believe it serves the client ’ s best interests , except in cases where the client has specified that you not disclose that information .
Case Scenario : When Can I Disclose Personal Health Information to my Client ’ s Family ?
Imagine you have a client ’ s family member calling you who is extremely concerned about their loved one . They want to better care for your client , who has been extremely forgetful and confused lately , but they aren ’ t sure what to do or how best to approach the situation . The family member has called you , the attorney , because you have a long-standing relationship with your client and are a trusted advisor . They are frantic with worry , but do not indicate that your client , or any other person in contact with your client , is in any immediate danger .
Now imagine that you are in possession of some pertinent medical information – let ’ s say , a report from an evaluation that your client recently had at the neurologist ’ s office , where they were diagnosed with Alzheimer ’ s disease or another form of dementia . Your client , however , has not given you consent to disclose his diagnostic test results . In fact , your client has specifically told you not to disclose this information to anyone .
It is now your duty to review the facts and weigh your options . Based on the information available , it appears that your client is not in critical danger of harming themselves or others ( either physically or financially ). In fact , even the concerned family member doesn ’ t believe that there is any imminent danger . Further , your client has told you not to disclose their diagnosis . Given the applicable Florida Rules of Professional Conduct an attorney in this situation must not disclose the client ’ s medical information to the concerned family member , even if the attorney believes that disclosure is in the client ’ s best interests .
If I am the attorney in this case scenario , what can I do to help my client ? First , encourage your client to disclose their diagnosis to a trusted family member or friend . A diagnosis of incapacity carries a heavy burden and can take its toll on your client ’ s mental and physical health . Next , if you believe that your client still has capacity to contract , encourage them to contact an estate planning attorney to obtain a durable power of attorney , health care surrogate declaration and pre-need guardian declaration . Having these documents in place can prevent a costly guardianship proceeding , as the court is required to give deference to “ less restrictive alternatives ” to guardianship . However , if you suspect that your client does not have the capacity to contract , you may decide to refer the concerned family member to a guardianship attorney or , in extreme cases , file the guardianship yourself .
See GUARDIANSHIP , Page 31
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