YourABA: June 2013
YourABA June 2013 Masthead

Elder law 101: The client might not be the one paying the legal fees

Lawyers who practice elder law face a challenging question that many other lawyers don’t always have to ask and answer: Who is the client?

“Depending on the circumstances of how the client comes to you, it may be a bit confusing,” said Colorado Springs lawyer Michael A. Kirtland at the teleconference “An Introduction to Elder Law,” hosted by the Elder Law Committee of the ABA Young Lawyers Division.

Kirtland described how this question must be answered as quickly as possible.

“It’s not unusual in the elder law setting to have an adult child of a senior call you first, maybe even ask to have a discussion with you first, and then bring their parent in. The result of that is you have a decision to make: Is the adult child your client, or is the senior your client? And the important thing is to make that decision right upfront, because I’ve seen quite a few attorneys completely conflicted out of a case because they didn’t make that distinction,” Kirtland said.

Once a lawyer has determined who he represents in the case, he can still face obstacles, including who will pay the bills.

“It is not unusual for the adult child or other family members to be paying the legal fees for the representation, but the client is actually the senior,” Kirtland said. “If that’s the case, you have to do a number of things. One of them is you have to keep in the forefront of your mind that the senior is your client, and your duty of confidentiality under the Rules of Professional Conduct lies with that senior.”

Kirtland also said it helps to have these roles defined in written agreements.

“It’s not unusual in the elder law setting to have an adult child of a senior call you first, maybe even ask to have a discussion with you first, and then bring their parent in.”

“…You need to get in writing from the senior consent to the fact that someone else will be paying the bill. And you need to get in writing from the person paying the bill that although they are responsible for the legal fees, they are not the client, and they are not entitled to confidential information,” he said.

Chicago lawyer Kerry R. Peck described why third-party custodial arrangements are sometimes needed.

“Much of elder law deals with cognitively impaired clients to some degree or another. Obviously, you’re not sure when they come in the office,” Peck said. “But as we talk about guardianships and alternatives, we are talking about third-party decision makers on behalf of an older adult or cognitively impaired adult over age 18. Those decision makers come in a variety of formats, but basically in two categories: an agent under a power of attorney [for both health care and property], and the other would be a court-appointed guardian.”

Peck then offered a hypothetical situation to help attendees understand the issues with these custodial arrangements and the sometimes life-or-death situations that arise out of these cases.

“If I am the principal and I’m naming, say, Michael, to make decisions for me, under almost all of the laws of the country, I must have the capacity to name Michael to make decisions for me. When I make the decision to choose Michael, I know that Michael is going to make the decision, in theory, to pull the plug when I am no longer able to make these decisions, if that’s my expressed intentions in my documents.

“We as lawyers need to be acutely aware of whether our client has the capacity to do the act and sign the documents that we are asking them to sign. Capacity is a fluid situation … and it’s like love, it’s in the eye of the beholder,” Peck added.

Colorado lawyer Catherine Anne Seal addressed the complexities of a client’s eligibility for Medicaid, the federal system of health insurance for those who need financial assistance. She stressed that Medicaid rules differ state by state and that financial eligibility rules treat assets and income differently for couples (assets are counted together, while income is considered separately for each spouse).

The panel also discussed one of the most challenging issues facing the elderly and those who represent them.

“How do you prevent elder abuse?” asked Seattle attorney Margaret K. Dore. “In some individual cases, we have been very successful in preventing it. But as a society, we’re not particularly good at it … One of the problems with stopping elder abuse is that there are so many ways to abuse people, and a lot of it happens behind closed doors. And each type of abuse requires a different strategy to combat it. Some of the strategies we use, such as guardianships, can create more abuse.”

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