December 16, 2020 Chair's Column

Chair's Column: December 2020

Heroes of democracy exist, and they walk among us.

By Michael J. Van Zandt

As I write this column, there are still legal challenges to the outcome of the November 3rd election for the Presidency of the United States. As I watch some of the state hearings and listen to the testimony, I am struck by the number of lawyers who were poll watchers. Not only did these lawyers volunteer their time to help local government with the election, they also have come forward to testify about what they saw and heard at the polling and tabulating stations. They are truly "Heroes of Democracy." This made me think generally about our obligations as lawyers to the profession and to our state bars to adhere to our professional responsibilities, especially the conduct and performance of our fellow lawyers.

One of our very important initiatives for this year in the Senior Lawyers Division is to establish a Center for Excellence for Dementia. Dementia is a fast-growing problem in this country, especially as our population ages. The Baby Boomers are swiftly swelling the ranks of the Social Security system and very soon everyone in our generation will be over 65, on Medicare and drawing Social Security. At the same time, we are facing a crisis of aging in this population as dementia slowly and surreptitiously steals its way into the minds of our seniors. As people age, their ability to manage their own affairs may be compromised. There are some who may take advantage of the inability of a senior person to manage their own affairs and will seek to exploit them. We, as lawyers, must be vigilant in watching over our clients and ensure that the decisions they make are competent about their legal and business affairs, are sound, and are not subject to undue influence or out and out fraud.

Model Rule of Professional Conduct 1.1 states that a lawyer shall provide competent representation to a client. What happens if the lawyer is suffering from early stages of dementia? Whose responsibility is it to keep track of the competence of lawyers? How do we intervene to ensure that both the lawyer and the clients are properly represented? The Lawyer Assistance Programs throughout the country are designed to provide confidential services and support to judges, lawyers, and law students who are facing mental health or substance use issues. See the resource page on the ABA website at www.americanbar.org/. Search for ABA Groups, Commission on Lawyer Assistance Program Resources.

In addition to assistance to lawyers and judges facing dementia, the Center for Excellence will also provide guidance for lawyers seeking assistance for their elderly clients who are facing issues of financial abuse or undue influence because of their mental condition. The Senior Lawyers Division maintains resources on many aspects of elder abuse and elder law designed to assist lawyers who do not normally practice in these areas. We also have resources to help lawyers understand when a mental condition may affect the competence of a client, how to deal with family members, and how to be alerted when an adverse condition occurs to a client's bank account, real estate, or business.

We hope to soon have a two way portal where you can post questions about dementia, elder abuse, and elder law so that we may assist in guiding our members to the correct resources to address issues of competence, abuse, fraud, and assistance. For more information send an email to the Senior Lawyers Division at abasrlawyers@americanbar.org.

May all have a very merry holiday season and a joyous, peaceful, and safe new year!

Author

Michael J. Van Zandt is a partner and co-chair of the Environmental & Natural Resources group at Hanson Bridgett in San Francisco. He is the current Chair of the Senior Lawyers Division; a representative for the ABA SLD to the ABA Section of Environment, Energy and Resources Special Committee; a Litigation Counsel of America senior fellow; and an American Bar Foundation life fellow.

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