Older Clients with Questionable Legal Competence: Elder Law Practitioners and Treating Physicians

Issues frequently arise in Elder Law practice concerning the cognitive and emotional ability of an older individual to make legally significant decisions. The physicians who have treated the person whose competence is being called into question, and/or the medical records generated by the treating physicians, often are sought by attorneys as sources of factual evidence regarding the patient’s symptoms and behaviors, clinical diagnoses, and treatments offered and dispensed. The attorney/physician interaction in this arena may be less than ideal. This essay examines some of the reasons for such interprofessional friction and makes suggestions for productively addressing the tension in a manner likely to benefit the allegedly incompetent person.