If a person has POA for a client, but is not the client, can the POA use attorney client privilege?

Asked over 4 years ago - Monrovia, MD

Client is elder, son has POA, son is being sued and in response to interrogatories is claiming attorney client privilege, while the elder was alive.

After the elder passes, the POA became the client and then could claim att'y client priv.? yes?

Attorney answers (4)

  1. Anne Debelius Lopiano

    Contributor Level 11

    1

    Lawyer agrees

    Answered . Not only does the status of being an agent (attorney-in-fact) NOT entitle the son to claim any attorney-client privilige, but the son is obligated to act only in the best interests of his father. That would include providing truthful information about his financial transactions under the POA, at the request of his father or his father's guardian or attorney that would help his father. If the father is now no longer mentally competent, I believe his guaridan can revoke the power of attorney. The errant son can also be prosecuted under Maryland's criminal code for financial elder abuse.

  2. Thomas C Valkenet

    Pro

    Contributor Level 18

    1

    Lawyer agrees

    Answered . Your question is lacking in some key details, which has lead to a real varied group of answers.

    If you are saying that son, in his capacity as the elder's agent, consulted with an attorney in the conduct of elder's affairs. Then he has his own privilege to claim. His assertion would simply bar the lawyer from speaking of the consultation. The son is always free to speak, on his own, and he can be compelled to speak on anything except what he discussed with his or the elder's attorney.

    If your question is whether the power-of-attorney gave the son some elevated status as an "attorney" so that communications between him and elder can be kept confidential, then "no." What son and elder discuss among themselves is subject to inquiry and full disclosure. The instrument allows him to act for elder, it does not give him the status of a licensed lawyer that would give elder legal advice.

  3. Steven Alan Fink

    Contributor Level 20

    Answered . The POA gives the son the ability to take certain financial and legal actions on behalf of his father. It does not make him a licensed attorney and it does not entitle him to claim attorney-client privilege whether the elder is alive or not.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

  4. Charles Edward Mcwilliams Jr.

    Contributor Level 14

    Answered . Only a licensed attorney can claim that privilege. After the principal on the POA dies the agent has no authority to act on his or her behalf. Rather, the executor steps in and takes over the financial affairs of the decedent.

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    DISCLAIMER: THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT A QUALIFIED ATTORNEY.

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