Elder law is defined as a holistic approach to the practice of law in which the attorney focuses on the needs of the client as a whole, rather than a particular area of the law, such as tax or contracts. However, this holistic approach is often at odds with conventional attorney-client relationships.
Life Planning v. Estate Planning
From the perspective of a traditional estate planner, one of the key distinctions between Estate Planning as it has generally been practiced over the last several decades and Elder Law is the Elder Law attorney’s focus on “Life Planning” as opposed to “transfer by death planning.”
Most traditional estate planners would probably concur that the largest focus of their practices has been to move the greatest amount of wealth from one generation to the next at the least expense in terms of court costs and taxes.
Elder law practitioners take a different view, although these traditional approaches certainly have their place. Elder law attorneys tend to emphasize the issues arising out of our longer life spans rather than death-related transfers.
Utilizing a holistic approach to the practice, elder law recognizes that what concerns today’s aging population the most are health related issues, the fear of isolation, and financial problems. These core concerns, arising out of our society’s core cultural values of independence and autonomy, are at the very heart of the practice of elder law.
The challenge then is to integrate not only these disparate approaches into the practice of law, but also to integrate other disciplines into the practice of law as reflected in NAELA Aspirational Standard D-2 which provides:
The Elder Law Attorney: ...Approaches client matters in a holistic manner, recognizing that legal representation of clients often is enhanced by the involvement of other professionals, support groups, and aging network resources.
The Ethical Challenges
Often, the attorney is approached by family members at a time of crisis. It is not uncommon for the contact person(s) (i.e., the children of a disabled senior), to reside out of town, with the distance creating additional anxiety and stress. The tensions and anxieties of the moment frequently overshadow and overwhelm the attorney’s objectivity and judgment — the very things
the parties consulting the attorney are seeking.
As a result of this family involvement, the attorney often faces questions that have never been encountered before and often must provide answers to previously unasked questions before the facts of the particular situation are fully explored and analyzed:
· Who is the client?
· If action must be taken, who has authority to act?
· If the issues involve someone in a medical crisis or suffering from a terminal condition, is there sufficient time to accomplish the tasks contemplated?
· Is sufficient information regarding the issues available to provide an informed opinion in a minimum amount of time?
· What resources are available to assist the attorney (and the client) in gathering this information?
· In dealing with multiple parties, what ethical issues must be dealt with?
Multi-Disciplinary Issues
These issues become even more difficult, confusing and often contradictory when the elder law attorney utilizes the services of other professionals in a multidisciplinary context. The ethical, statutory and regulatory environment in which other professionals operate often conflicts with the environment in which the elder law attorney operates.
In addition to the law, elder law attorneys need to have a certain degree of medical knowledge. Familiarity with the stages of Alzheimer’s Disease, the effect of aphasia on a client’s ability to consent to treatment, the impact of hemiparesis on a client’s ability to execute documents (to name a few), are all part of the day-to-day requirements of practicing elder law.
Recognizing this need, in November 2005, NAELA adopted the Aspirational Standards for the Practice of Elder Law. Simultaneously, Commentaries were adopted to explain and illustrate the meaning and purposes of the Standards. As stated in the Preamble to the Aspirational Standards:
Each state’s professional responsibility rules mandate the minimum requirements of conduct for attorneys to maintain their licenses. These Aspirational Standards build upon and supplement those rules. Attorneys who aspire to and meet these standards will elevate their level of professionalism in the practice of Elder Law, and enhance the quality of service to their clients. As attorneys meet these Standards, the practice of Elder Law will be raised to a higher standard of professionalism. These Aspirational Standards do not define or establish a community standard. They are not intended nor should they be used to support a cause of action, create a presumption of a breach of legal duty, or form a basis for civil liability.
Setting the Stage
Here is a not uncommon situation:
The phone rings. The caller identifies herself as the daughter of a couple in crisis. Her father is in a hospital near your office, having just suffered a massive stroke. Her mother is unable to cope. The daughter lives on the opposite coast and will not be able to get there for the next several days. Her brother works for a multinational company and is currently on assignment in South America. He wants to be involved and can be available by cell phone for a conference call. Two other siblings live in the Midwest and Northeast. One wants to be involved (but not too much, unless money is involved), and the other wants nothing to do with his parents at all, at least until it is time to take his share of the inheritance.
Their mother is giving them conflicting, incoherent reports about what is happening. The hospital will not divulge any information regarding their father’s condition. They have heard rumors that, if their father lives and has to be placed in a nursing home, all of the family’s assets will be consumed in nursing home costs; the state will take the parents’ home if they seek public assistance; and mother will be tossed out on the street.
The family physician has told the mother that she (the physician) expects the father to make a full recovery and he will be able to come home as long as there is full-time assistance in the home. However, she has also told the daughter that dad may never come out of intensive care and they should prepare for the worst. At best, the father, if he is able to come home, will require 24/7 care from this point forward and the doctor believes they should start looking for either a caregiver or a nursing home.
The daughter informs you that they (the children and mom) want to schedule an appointment to discuss their options. The daughter and mother will attend in person and the other children will participate by conference call. Parenthetically, the daughter shares with you that she is a bit concerned about her mother’s driving skills since she has discovered that in the last six months the mother has had a number of “fender benders” and will not visit her husband in the hospital at night because she is scared to drive in the dark. She (the daughter), wants to know what, if anything, she should do about this.
How should you respond?