Because of the rules that govern lawyers, a lawyer is only able to represent two people on a related matter if both people can and do consent to this multiple representation.
If one spouse is less than fully mentally capable, it is impossible for one lawyer to represent both spouses.
Even if one spouse is only starting down a path that may lead to incapacity, it is generally unwise for one lawyer to represent both people.
There are several reasons for this.
First, when one spouse becomes incapable, the lawyer will have to withdraw, and will no longer be able to represent either spouse.
In addition, if, at some point in the future, when one spouse is incapable (or even has passed on), there will be a question whether the ill spouse was fully capable during the joint representation, and whether the work that was done for that ill spouse was really appropriate. This can create great difficulties.
It is important to remember that even if one spouse has started down the path toward incapacity, that spouse can still generally give instructions to their own lawyer, and can receive and understand legal advice. This is generally the best path forward in a situation where someone has started down the path toward incapacity, since generally at that point it is very important to make sure that the ill spouse transfers assets to the well spouse, creates powers of attorney that have some very specific powers benefitting the well spouse, and the like.
In general, while the ill spouse will need their own lawyer, the lawyer for the well spouse and the lawyer for the ill spouse will need to work together, to be sure that the lawyer for the well spouse is satisfied that all of the appropriate transfers are made, and all of the appropriate powers are incorporated into the ill spouse’s power of attorney, etc., while the ill spouse’s lawyer will want to make sure that the ill spouse really does understand what is going on, and that the ill spouse really does want to take these steps to benefit the well spouse.
