Who is typically allowed to assert privilege when a client is deceased and there is no statutory language regarding privilege?

In the context of privilege after a client's death, the legal representative of the deceased client is typically the individual who is permitted to assert the privilege. This is grounded in the notion that the legal representative is tasked with managing the deceased person's affairs, which includes protecting their rights and interests, such as the confidentiality of communications between the client and the counselor.

When a client dies, their confidentiality rights do not automatically cease; instead, these rights are often transferred to the legal representative, who may be an executor of the estate or a designated individual outlined in a will. This person is responsible for upholding the deceased’s wishes as outlined in any legal documents, and can advocate for the assertion of privilege to maintain the confidentiality of counseling records and communications.

Other options, like family members or the counselor, may not have the legally recognized authority to assert this privilege in the absence of specific statutory language defining their rights. Similarly, while a court can rule on matters of privilege, it does not inherently hold the right to assert privilege on behalf of a deceased client. Thus, the legal representative is uniquely positioned to represent the interests of the deceased in such matters.