Volume 2, Issue 1

Linda S. Whitton

Professor Whitton’s article is the first to examine the ethical and practical ramifications of a lawyer drafting a client’s durable power of attorney and also serving as the agent, or “attorney-in-fact,” thereunder . The likelihood that clients will request lawyers to accept the delegation of their durable powers is increasing due to the phenomenal growth of the elderly as a percentage of total population and the concomitant rise in the need for surrogate decision making. Professor Whitton evaluates durable powers as a mechanism for surrogate decision making and then discusses the basic duties required of both attorneys-at-law and attorneys-in-fact. She concludes that despite the lack of a direct prohibition on dual representation in either the Model Code Of Professional Responsibility or the Model Rules of Professional Conduct , lawyers should decline such representation rather than risk compromising the attorney-client relationship or the services rendered to an incapacitated client.

Linda S. Whitton is Associate Professor, Valparaiso University School of Law, and received her J.D. from Valparaiso University School of Law.