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.
Communicating with Your Elderly Clients
BY JEFFREY L. TOLMAN
Jeffrey L. Tolman has practiced law since 1978 in Poulsbo, Washington, a small town across Puget Sound from Seattle. He is also the part-time Poulsbo Municipal Court judge. He is a delegate to the ABA House of Delegates. This article was fine-tuned by his mentor and friend Jay Roof, whose input, as always, was invaluable.
Our elderly clients grew up in a different world than we did. They saw their world fall apart during the Depression. They fought wars to preserve our freedom and lost friends and family members in the process. They were taught to respect their elders and those with an education.
They take pride in the fact that they worked hard. They were dedicated to "the company." They are proud of their families and protective of their privacy. They were independent and self-sufficient. Most have never needed anyone to help solve their problems—they did it themselves.
But age takes its toll. As my friend Jack Wassen says, "Growing old is not for sissies." As our clients aged, their health began to deteriorate and they started to need assistance. Blood clots formed, hearts and prostates began to fail. Cancer was no longer theoretical. Siblings and long-time acquaintances went into nursing homes or died. All of their life skills cannot solve the ravages of age. They need help. Now, for the first time, they need to see a lawyer.
Most elderly clients have long since come to grips with death. It is the medical process and costs of dying, together with "probate" (where everything goes to the state, or so they've been told), that they fear the most.
This is the perspective that many elderly clients bring to the lawyer's office: a perspective of which you must be acutely aware in order to work effectively with the client. Don't assume, because of your client's age, that one of his life experiences includes going to a lawyer. Most have not. Some clients actually feel it is a sign of failure or weakness to need a lawyer's assistance. They are used to working out their problems themselves. The have heard lawyer-bashing stories and will be a bit on edge.
Elderly clients have two immediate problems when coming to a lawyer's office: first, the client is very nervous; and second, the client is very concerned about the cost. To help alleviate the client's nervousness, I suggest a number of strategies.
Show Some Respect
Always greet your new client with a smile, a look in the eye, and a firm handshake. First impressions are always important, particularly with a nervous elderly client. Immediately tell her how much you appreciate her coming in to see you. Show her respect from the beginning. Refer to the client as "Mr." or "Mrs." until he or she lets you know it's all right to call him "Darrell" or her "Pam." Conversely, let clients know that they are welcome to call you by your first name if they prefer. Some elderly clients will always call me "Mr. Tolman" out of respect for my educational achievements and my profession.
Elderly clients do not like a sloppy office. Most seniors pride themselves on the condition of their homes and property. Even if they don't, generally they expect neatness of a "professional." They have pride in their possessions and will want a lawyer who does, as well. Have photos of your family in your office. This can be an icebreaker for a nervous client who is searching for some common ground upon which to start a conversation.
Tell them a bit about yourself. Elderly clients were raised to value friendships (perhaps only after God, family, and a strong work ethic). I often tell new senior clients about my roots—that I had never met a lawyer until I went to law school. That my dad and I worked in a sawmill and my mom worked as a clerk at a small-town bank. That I am very proud to be a lawyer, but still know more about not being a lawyer than being a lawyer. The fact that I am from a working-class family calms many of my elderly clients. They understand that we are, in spite of my job, more alike than we are different.
Talk about the Problem
Go over the general nature of the client's problem and explain what specific action you will take on his behalf. "Lawyer" is a verb. The client will be more than willing to pay for legal work when the work is explained in advance. The delicate balance is to make him feel comfortable without feeling as though he is being charged a fee to feel comfortable.
Always summarize your understanding of the client's legal problem and what you and he have to do before the next meeting. A brief handwritten note at the end of the meeting and a follow-up letter will help your client track what will happen next—at his own pace, at his convenience, in his own home.
Sometimes it is best to advise an elderly client in the negative—what won't happen regarding her problem. That the state won't get her property after her death. That she will not go to jail for that traffic ticket. That there will not be inheritance tax if she pays some extra money for a credit shelter trust now. Telling elderly clients what won't happen may be one of the most reassuring things you can do.
Occasionally, an elderly client will do something truly dumb. For instance, I am surprised at how many elders with money in their pockets shoplift. Regardless of the circumstances, give the client her dignity. Let her know that it was a human mistake—one that has been made before. Explain that she is not a bad person; she is a real person who needs to correct her error.
The Most Sensitive Subject
Explain the client's billing options. Present a cost-benefit analysis of an hourly fee versus a flat fee. Let him make the choice. When possible, explain how your work will actually save the client money in the long run. For example, a durable power of attorney that costs $40 now will save the cost of a guardianship later. Changing an account to "joint tenants with right of survivorship" will reduce some paperwork and save a bit of money, if kept out of the probate proceeding. The elderly client may well have survived the Depression and is used to shopping for the best bargain, but will buy only if he knows he is getting his money's worth.
It often helps to put your billing in perspective. In my office, a simple will costs the same as a decent pair of basketball shoes. My hourly rate is less than the Puget Sound Naval Shipyard's (our biggest local employer) hourly rate for bidding out most trades. Clients understand this type of comparison. They understand the worker does not get all of the money charged in the hourly rate. My hourly rate is less than Nordstrom's salespeople have to sell each hour to keep their jobs. People like it when there is some reasonable real-life comparison for my hourly rate.
Give Them the Power
Many elderly clients will initially be intimidated when talking to a lawyer with so much formal education. They will be great clients once you get past this intimidation. One 90-year-old, long-time client said to a partner of mine, "I have to tell you, I think of you as a father to me." It was a great compliment—my partner had, through helping with many decisions, become an advisor and mentor to the fine gentleman.
Let the client know that she is the boss, that she is the one who pays you. Let her know that your goal in handling her legal matter is to earn her greatest gift—she chooses you to be her lawyer. Clients like to hear me say that my ultimate reward is to hear someone casually say, "There goes Jeff Tolman. He is my lawyer."
Go slow. The rhythm of your life is undoubtedly faster than that of your elderly client's. I can't tell you the number of times I have seen a lawyer, supposedly escorting a client to her office, walk so quickly that the client is forced to find his own way to the lawyer's office. The message: Hurry up, I'm too busy for you. Give him time to get to your office and time to think. Allow him time to be silent. Great gems await a brief silence.
Changing the Subject
Bringing up other issues that the senior may not have thought about is a delicate matter. It has to be done without appearing to be pushing a sale. One option: "Many of my clients are upset if I don't mention durable powers of attorney or directives to physicians. Would you like for me to tell you about them?" Or "People sometimes miss some subtle issues. For example..." At that point, it is the client's choice to continue. Most of the time, they rely on your advice that other clients have found such discussions helpful, and will give you the go-ahead.
Typical areas of concern are: Does the client have a will or any other estate planning document? How would his estate be distributed if he died soon? Is this how he wants his estate to go to heirs? Does he have a durable power of attorney? Does the client understand that beneficiary designations will go to that person and not through the estate? Does she know who the beneficiaries are on her life insurance and retirement accounts? What is the effect of a joint account? Is her estate subject to federal estate taxes? Would estate planning help eliminate or reduce the tax? Does a bequest go to her children or to her children's spouses as well? What happens if a spouse ends up in a nursing home? What is probate and does the lawyer really end up with everything?
One of the most difficult tasks for a lawyer is to reeducate the client. Many of them remember Darsay's How to Avoid Probate. Explain the dangers of transferring houses and bank accounts to children—particularly children's soon-to-be-ex-spouses, ex-spouses, or creditors, or even the occasional child who helps himself. Take time to explain what probate does—it clears the estate of potential creditors and gives heirs the certainty that the inheritance is theirs.
All of this is second nature to the lawyer but foreign to the elderly client. She will appreciate your experience if it has been explained in everyday language that is relevant to her problem. A senior client of mine has always preached that people should have a young doctor (who knows the latest medical advancements) and an old lawyer (someone who has been there, done that). He is probably right.
Above and Beyond