General Practice, Solo & Small Firm DivisionMagazine
American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Spring 1998
© American Bar Association. All rights reserved.

Avoiding Pitfalls When Counseling the Elderly

BY WALTER T. BURKE

Walter T. Burke is a partner in the law firm of Burke and Casserly, P.C., in Albany, New York. His practice focuses on elder law, financial and estate planning, health law, and taxation. He is chair of the Elder Law Section of the New York State Bar Association.

There was a time when "counseling the elderly" simply meant drafting wills for clients. Now, it means so much more, including estate tax planning, health care decision making, Medicaid planning, and guidance through the emotional tragedy of losing a spouse.

The ABA has recently approved a certification program and established the legal specialty of elder law. The ABA identified five substantive and procedural "core" areas of law that fall within the elder law specialty: health and personal care planning, pre-mortem legal planning, fiduciary representation, legal capacity counseling, and public benefits advice.

Before the Legal Work Begins

When scheduling both the initial consultation and subsequent meetings with an elderly client, be aware of the physical health and mental well-being of the client. It is probable that the client will have a routine medication regimen that you may be required to plan around.

For instance, in situations where the client is medicated, the client may be alert and lucid after her breakfast and medication; but after lunchtime and before the next scheduled medication, she may be groggy and confused. Where the client's capacity may be an issue, and in instances where the client has severe physical problems or signs of early dementia, knowing the client's medication schedule will be important in both helping the client as much as possible and combating a will contest or malpractice suit later.

Another factor to consider is the accessibility and decor of your office. Hallways and doorways must be wide enough to accommodate wheelchairs or walkers. Throw rugs, sofas, and plush or overstuffed chairs should be avoided. Chairs should have straight backs and minimal cushions with arms that are strong enough to support a person leaning on them for support. If your office is not on the first floor and there is no elevator in the building, or if there isn't adequate parking in close proximity to your office, it may be advisable to meet with an elderly client at his home. Presenting this option to all elderly clients may open the door to an additional client base that you had not previously considered.

When advising an elderly client, you may need to make yourself more available than in other specialties, as the elderly client may expect to speak with you directly and immediately regarding legal matters. Take the time to find out how your client handles travel arrangements. Can the client drive herself to your office, or will an adult child be driving the client? These simple courtesies may mean the difference between a satisfied client who pays her bill promptly and a person who decides not to retain you.

In order to effectively counsel the elderly client, complete and accurate information regarding the client's family, marital status, assets, and intentions is necessary. An efficient way to obtain this information is to develop a questionnaire form for gathering information. The questionnaire should elicit the following information (see figure 1):
  1. Names, addresses, and dates of birth of children.
  2. Whether the client has a will, durable power of attorney, or advance directive for health care decision making.
  3. Whether the client owns a home, and if so, how title is held.
  4. Names, addresses, and telephone num-bers of people who handle financial and/or personal affairs.
  5. Ownership of safe deposit box.
  6. List of assets and their respective values.

Such a questionnaire is suggested where you are counseling an elderly client regarding estate or financial planning or health care decision making.

Before you begin to analyze the legal issues surrounding your client, you must make a basic decision—who is the client? Is it the adult child who calls you and asks you to prepare mom's will? Or is the mom your client? Determining who your client is can present an ethical dilemma that you should confront as early as possible when establishing the attorney-client relationship.

Who Is Your Client?

For instance, the adult child calls you to schedule an initial consultation with his parent to discuss the parent's will. At the initial meeting, the adult child comes with his parent and expects to be included in your discussion regarding the parent's wishes regarding her will. What do you do? Do you request time alone to speak with the parent, or do you simply permit the adult child to remain in the meeting?

Ethically, you should consider the facts and circumstances of the elderly individual and her family situation. In some situations, the elderly individual has discussed her plan with the adult child and is comfortable discussing her testamentary plan in front of the child. In other situations, the adult child may be in conflict with other siblings and is attempting to influence or control the disposition of his parent's estate. It is important to remember your state's ethical rules regarding the protection of the attorney-client privilege when determining who is your client.

In order to best protect a prospective or current elderly client from undue influence by family members or friends, you may choose to contact and communicate directly with the client alone and send drafts of any prepared legal documents to the client so that he or she may review and thoughtfully consider its contents outside the presence of anyone who may be exerting influence. Taking the time to decide who is your client at the beginning of the relationship may halt a later problem should the question arise as to whom you represent and with whom the attorney-client privilege attaches.

Defensive Will and Trust Drafting

Will drafting has been the traditional role for lawyers counseling elderly clients. Since people over the age of 50 presently control 70 percent of the total net worth in the United States, defensive estate planning may be necessary to protect a client's financial interests. The probability of a will contest should be considered before the lawyer begins to draft the client's will. A great percentage of will contests are merely for nuisance value, so it is best to confront the possibility of such a contest before drafting the will. Ask the following questions:
  1. Who made the initial contact, scheduled the appointment, or brought the client to your office?
  2. Does the proposed testamentary plan favor or disinherit one or more relatives?
  3. What are the client's reasons for favoring or disinheriting relatives?
  4. Who—the client or someone else—is promoting favoritism or disinheritance?
  5. Did the client's prior will, if any, follow a similar pattern of favoritism or disinheritance?

If you find that someone is attempting to influence your client, you should take proactive steps to ensure that the client's testamentary plan is of his own free volition. In order to further insulate against will contests, the lawyer drafting a will should consider using a standard procedure or checklist during the will execution ceremony. Figure 2 is an example of a standard will execution procedure whereby the lawyer supervising the will execution places his initials next to each step during the execution ceremony. In the event that the will is contested, evidence establishing that the lawyer always uses the same procedure in executing wills may be effectively used to defeat a will contest.

Other methods to combat a claim of incapacity include having the client write, in her own handwriting, a letter expressing her testamentary plan; routinely drafting notes to the file describing the client's mental capacity at meetings and during phone conversations; and audiotaping or videotaping the will execution ceremony.

What if your client wants to nominate you to act as executor of her will or wishes to leave you a bequest in her will. Depending on the state in which you practice, such a nomination or bequest may be forbidden either by statute or case law. In New York, case law dictates that where a lawyer or draftsperson is nominated as executor, he must disclose, in writing, to the client that he will be entitled to statutory commissions.

Where the client wishes to leave a bequest to a lawyer, it is best that the lawyer inform the client that another lawyer, not within the same firm, should prepare the will. Doing so will negate any inference of impropriety. In some states, the courts will disregard a gift to the lawyer unless the lawyer is related to the testator.

Health Care Decision Making

Since the elderly consume a major portion of health care, and as medical technology increases, the importance of advising and preparing advance directives for elderly clients should be noted by lawyers counseling the elderly. A corollary to estate planning and will drafting is the availability of advance directives regarding health care decision making. This is of special concern when dealing with seniors. Each state and the District of Columbia has authorized the use of advanced directives by either statute, case law, or opinion of the state attorney general. Generally, a client may execute a durable power of attorney for health care decisions and a living will.

In New York, a health care proxy permits an individual, the principal, to designate another person to act as her agent in making decisions regarding health care should the principal become incompetent or unable to make her own decisions regarding health care. In Florida, the designation of health care surrogate is the equivalent of the New York health care proxy.

When assisting a client in preparing a health care proxy, designation of health care surrogate, or your state's equivalent, it is important to stress to the client that the designated agent may have to withstand pressure from other distressed family members regarding the client's wishes with respect to certain medical treatments. The designated agent should be a person who knows the client's wishes specifically regarding artificial nutrition and hydration as well as other life-saving techniques, and who will comply with the client's requests. It is important to stress to your client that even if he or she has executed a health care proxy or designation of health care surrogate, if the client is competent when medical treatment becomes necessary, the client will make the decision, not the agent.

A living will is a document that the client may execute providing specific directions to his or her physician, family, and designated health care agent concerning his or her wishes about medical treatment that the client does or does not want to have. The living will may be the appropriate document to address the client's feelings regarding life-sustaining treatments and medications, depending on the state.

When assisting clients in preparing advance directives, you should make an effort to ascertain whether the advance directives will remain valid should the client move to another state. Even if the client has executed an advance directive in one state and is hospitalized in another state, under the federal Patient Self-Determination Act (42 U.S.C. § 1395cc(f)), the client will be given the opportunity to prepare an advanced directive that complies with that state's law before admittance to the hospital.

Long-Term Care Planning

The most difficult topic to raise with elderly clients and their families is the issue of nursing homes and their costs. While discussions of nursing homes can be heart-wrenching, it is more important to discuss the possibility and costs associated with nursing homes than it is to explain estate taxes. Nursing homes have a great impact on clients and their families, both financially and emotionally. Medicaid is the federal program that pays for the long-term care costs typically associated with nursing homes, not Medicare. While Medicaid may pay for nursing home costs, it remains necessary for the lawyer to help clients and their families understand and plan for long-term care.

Recent federal legislation makes it a crime for a lawyer to counsel clients for a fee regarding the transfer of assets for the purpose of qualifying for Medicaid if it results in a period of ineligibility. This legislation was enacted in response to and as a result of the repeal of the "Granny Goes to Jail" law.

This federal law has become the target of a lawsuit initiated by the New York State Bar Association (NYSBA). NYSBA's complaint emphasizes that criminalizing the counseling of or assistance to an individual to regarding the disposal of assets violates the constitutional protection of freedom of speech encompassed in the First Amendment. In other words, the statute criminalizes protected speech regarding non-criminal conduct. Further, NYSBA alleges that the statute violates the due process clause of the Fifth Amendment because the statute is unconstitutionally overbroad and vague, and the enforcement of the statute is uncertain and may be varied.

NYSBA's complaint requests that the U.S. District Court of the Northern District of New York declare Section 4734 violative of the First and Fifth Amendments and permanently enjoin enforcement of the statute. The outcome of this federal lawsuit will affect how lawyers assist middle- and lower-middle-income elderly clients in becoming eligible for Medicaid as well as how elderly clients may protect their assets and children's inheritance from devastating long-term care costs.

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