Volume 19, Number 5
Challenges of Elder Law
By Betty Smith Adams
Estate planning for the elder citizen is a particularly rewarding but demanding practice area. Leaving aside the complexities of the substantive law, dealing with the elderly is a challenge in and of itself. Providing effective legal assistance to elderly clients requires the patience of Job, the tact of a diplomat, and the listening skills of a pastor or rabbi-you must be prepared to assume several roles other than practicing law. Although it is unwise to stereotype any group of clients, the elderly in general require a more patient and mannerly approach.
Several issues arise the moment an elder citizen becomes a client. The first and most obvious is competency. You must assess your new client's mental state and ability (as defined by the laws of your particular state) to make decisions about assets and their disposition. Physical issues such as deafness, impaired vision, or stroke damage do not, singly or in combination, qualify an individual as "incompetent." Wandering eyes, dilated pupils, or slurred speech may be signs of chronic medication or a particular health issue but do not necessarily indicate a lack of competency.
Verbal cues can indicate orientation to the present and comprehension. Take a few minutes for a general discussion of current events or local issues. If you suspect that diminished capacity may be an issue, a second appointment at a different time of day or different day of the week could provide a cross-check. I frequently set up the first client appointment knowing it will be nothing more than a get-acquainted meeting. If you are visiting the client's home, stop and chat with a neighbor to see whether any new information comes up-keeping in mind confidentiality issues, of course.
Who Is the Client?
Frequently, an attorney's first contact with a new senior client has been set up by one or more of the individual's adult children. Therein lies the second issue: determining who is your client. The potential for conflicts of interest is significant. The adult child who made the initial contact and arranged the appointment may have pressured the senior parent into meeting with you. How often have we heard from an adult child, "I know this is what Mother wants" or "Dad wants to have me put on the deed to his home"? Clarifying this issue can be essential to your effectiveness as a counselor and advisor.
Assessing whether the adult child is truly communicating the parent's wishes or simply enacting a personal agenda is also important. This is particularly difficult to do if you previously represented the adult child in any capacity. Although you don't want to categorically eliminate a source of new client referrals, cautiously probe statements or behaviors that alert you. I deal with this situation by talking to the elder client alone and, if possible, frankly discussing my concerns. I am upfront about the potential for conflicts of interest on my part if there was prior representation. Explaining why I believe a private meeting is necessary (even if the family simply waits in another room) either reassures the senior that I have his or her best interest at heart, which gets our relationship off to a good start, or brings a problematic situation out in the open.
If I still have concerns about active representation, I also try to find out independently about the nature of the relationship between the parent and child. By observing their relationship and interacting with all parties, I gather a fairly accurate idea whether the adult child is domineering or has a personal agenda. In such a situation, I might defer committing to active representation and/or making recommendations until I can consult with my partner, discuss the situation with a respected colleague, or consult my state bar association's ethics hotline (a good resource in extreme cases).
If the potential for conflicts of interest exists, I still might represent the client, provided the client knowingly and voluntarily acknowledges the potential conflict, understands the possible scenarios for conflict of interest, and still decides to proceed. In situations where the knowing and voluntary nature of a client waiver brings up questions, I will refer the client to a disinterested attorney. (Keep in mind, however, that the Rules of Professional Responsibility in most jurisdictions require that all clients must consent to representation where the potential for conflict exists.)
Elderly parents sometimes defer to adult children in a kind of role reversal. If this family dynamic exists, you may find that you are conducting conferences with both the parent and child. Such a relationship is not inherently harmful to the parent if the adult child's actions are appropriate and in the parent's best interests-some amount of protectiveness toward an aging parent is appropriate. If you have been able to verify that the parent actively wants the child to be present, this may be an efficient way to conduct business and accommodate the parent's wishes. I have seen such three-way conversations open deeper lines of communication and, in fact, prove to be uncommonly good bonding experiences for both parent and child. In such situations, I have been able to be not only a counselor but also a facilitator.
One other potential pitfall that needs to be mentioned is the potential for problems down the road if other adult children do not participate in estate arrangements. Geography more often than not today separates many adult children and parents, and one adult child in closer proximity frequently assumes a caregiver role. However, I suggest you check your particular jurisdiction's laws concerning potential liability, intended or unintended, from third-party beneficiaries and take appropriate steps to avoid this exposure.
The Aging Process
An understanding of the aging process is important for anyone practicing elder law. Shortened attention spans, increased attention to small details, and a decreased ability to process information quickly often accompany aging. You will find patience your most important virtue. Allow longer blocks of time for appointments, and keep background noise and the hubbub that can be part of a busy law office to a minimum to avoid distractions. During a conference I try not to rush but to gear down.
Good manners go a long way toward establishing rapport, as does an understanding of what I term the "Great Depression mindset." I have observed that many elder Americans are indeed wealthy on paper but live their lives modestly, if not frugally. Although a baby-boomer attorney like me cannot trade meaningful Depression war stories with my parents' generation, I keep in the back of my mind the qualities of thrift, simplicity, financial conservatism, and abhorrence of debt that form a common thread with elder clients. If more than a simple will and power of attorney are needed, I set the stage by explaining how and why estate planning fits within the context of wealth preservation.
I have developed cherished relationships with many of my senior clients. In the current cultural climate that so often demon-izes attorneys, my older clients reward me with sincere appreciation and thanks. Many of them call me just to share an exciting or sad event in their lives or to request help with something that is not even related to law. These calls reaffirm my commitment to helping "the greatest generation" by providing them with the best legal counsel I am able to give, and doing so with the greatest care and consideration.
Betty Smith Adams is an attorney practicing in Howard County, Maryland, with a special interest in elder law and estate planning and administration. She can be reached at firstname.lastname@example.org.