Volume 20, Number 3
Advising the Elderly Client
By Louis A. Mezzullo, Mark Woolpert, et al.
Reviewed by Christina KallasChristina Kallas practices law in New York City and specializes in real estate law, business law, trusts and estates, and mediation.
This ambitious loose-leaf set, published by West Group, covers the gamut of topics that an elder law attorney is likely to encounter. It is well written and organized, as well as comprehensive.
The first part includes an overview of the demographics of aging, not only in the United States but also internationally, and an introduction to the practice of elder law. It includes a sensitive discussion of issues that practitioners of elder law would do well to remember during the representation of a client; for example, the authors make the point several times that not all elderly clients are in any way “disabled” or incompetent, although certainly some are. The authors also point out that a mental disability such as dementia can be temporary, or fluctuating, and that an apparent disability can be the result of the misunderstanding of the attorney, who mistakes a hearing problem for a form of dementia. I was disappointed that the authors do not address the apparent competence of a client who in fact lacks capacity, which I believe is a problem that the legal profession has yet to adequately address (perhaps because often we, like the rest of society, have not acknowledged it as a problem).
These types of ethical problems are part of what makes the practice of elder law so challenging. In the introductory chapter the authors take the position, I believe rightly, that oftentimes the Model Code of Professional Responsibility does not adequately address the ethical problems arising out of this practice area, given the tendency on the part of the drafters of the Model Rules to assume that when representing a client the attorney plays a predominantly adversarial role. Although the later Model Rules of Professional Conduct do recognize what the authors describe as the “multiple roles of advocate, adviser, intermediator and evaluator” in the chapter on ethical considerations, the authors do include relevant provisions of the more meaningful Commentaries of the American College of Trust and Estate Counsel. The authors do a good job of identifying potential landmines for practitioners in this area and how they might be avoided, providing a checklist of considerations in Chapter 3:22.
The work contains voluminous footnotes and includes cites to web pages as well as to publications more traditionally cited in legal publications; other West publications are heavily cited, but all are apposite.
The work also contains many practical suggestions that I found particularly helpful. For example, while conceding that “specific competency can occur during a single lucid moment and can be transient, assessment of testamentary capacity can be difficult,” the publication does discuss the various tests that can be used to assess capacity. The chapter on capacity does a good job of distinguishing among the various standards of legal capacity required for execution of a will or trust or conveyance of real property or an advance directive, and capacity to refuse treatment or give informed consent to a medical procedure. Even more helpful is the discussion of how to defend or attack the capacity of the actions of an allegedly incapacitated person (AIP), in which the authors acknowledge that the manner of determining capacity is an “imperfect science.” One omission that I found odd: in Chapter 4A:23, concerning the testimony of expert witnesses, there is no discussion of the problem of the admissibility of testimony by physicians when it arguably contravenes the physician-patient privilege of the allegedly incapacitated person.
The publication offers practical advice to the drafter of documents for elderly clients where capacity is or may become an issue, suggesting, for example, that the practitioner become informed as to the amount, side effects, and timing of administering medication, and make arrangements to reduce the impact of drugs on the capacity of a client about to sign binding legal documents. There are checklists, for example in Chapter 4A:37, for how to safeguard the client against allegations of undue influence.
In an elder law practice there is a fair amount of overlap among topics, but I liked the way the publication organized this information. The two volumes are divided into seven parts. Part 1, the introduction, includes a discussion of the daily problems facing elderly clients, ranging from consumer issues to elder abuse, access and mobility issues, and state benefits for senior citizens. It provides a refreshing reminder that, just because a client is elderly does not mean that our services are useful only in planning for death. Part 1 includes a section on possible solutions to various lifetime problems, Chapter 4:67, which could serve as a quick reference in the event of a frantic phone call from a client. Part 2, on financial planning, discusses income, taxation, and real property, as well as the usual pre- and postmortem estate planning areas. It includes many helpful checklists and suggestions, for example, for determining the actual income needs of the clients and for developing an income profile, in Chapter 5:50. Part 3 concerns estate planning and includes separate chapters on planning for those who are about to die, on disposing of business and professional practices, as well as the more customary chapters on wills and trusts, life insurance, and lifetime transfers. Part 4, concerning Social Security and SSI, is divided into substantive and procedural sections, making information more easily accessible. Part 5, concerning pension and retirement benefits, includes separate chapters on public pensions and private pensions and IRAs. Part 6, concerning health care facilities, discusses nursing homes as well as alternatives such as home care and hospice. In keeping with the importance attached to the practical that runs throughout the publication, there is a separate chapter on financing home care alternatives. In fact, all of Part 7 concerns means of paying for health care, including long-term care insurance, Medicare, and Medicaid. As in Part 4, this part addresses separately the substantive requirements of each program and the claims and administrative proceedings with which a practitioner must be familiar.
Advising the Elderly Client is exhaustive in its coverage of the topic and balanced in its approach; it is practical, yet filled with references to the appropriate statutes, rulings, and case law. It was an ambitious undertaking and is a worthy addition to the library of anyone practicing in this area. Given its scope, if your library budget is limited, you can probably replace several other publications with this one.