I’m pleased to be presenting again at the Fourth Annual Elder Law Retreat in Vail, Colorado next week. It’s put on by our Colorado Bar Association Continuing Legal Education, Inc. and is co-sponsored by the Elder Law Section of the CBA and the Colorado Chapter of the National Academy of Elder Law Attorneys. My breakout sessions cover the intersection of ethics and practice management for attorneys practicing in the elder law field.
I thought an overview of some of the different ways that elder law attorneys are hired by and work with clients, and how the relationships can be more complicated than the more “traditional” areas of practice would make an interesting blog post. So here goes. . . .
I’ve said this in a few other places already, but we’ve never had this many 80 and 90 year-olds on the face of the planet before! Many of us baby boomers hope that our life spans will extend beyond those of our parents, so what’s the big deal? That’s where the relatively new field of elder law comes in . . . .
What is Elder Law?
Elder law is a practice area that started out as an outgrowth of the more traditional trusts and estates field, but is essentially a general practice area that is concerned with the needs and legal challenges of older people (elders) . With medical advances and relative affluence, people are living longer, and periods of incapacity are more common, along with a greater incidence of cognitive and physical disability. Other factors that impact the growth of elder law are the outsourcing of some of the care that families have traditionally provided elders, which has resulted in no small part from the number of women in the workforce, along with family members living apart from each other geographically. Some important distinctions are relevant here – elder law attorneys may sometimes:
- meet with clients at home or in health care facilities
- meet with clients who are brought in by family member to the lawyer’s office
- work with other allied elder care professionals like geriatric care managers
- work within a “communitarian” or family-based approach to benefit all family members
These are just a few examples of how the “traditional” single client attorney client relationship, that is “typically” geared at some type of litigation to fix a problem differs widely from an approach where an elder client is looking for counseling and preparation of documents that will facilitate their continued support with family member involvement.
The majority of elder law attorneys – except those practicing in contested probate matters – tend to look for ways to avoid litigation and may adopt an approach that is not the traditionally “adversarial” approach but take one that is decidedly “facilitative” in outlook. What I mean here is an attorney who can think outside the box and negotiate agreements that aren’t exclusively protection oriented but are results oriented. In a litigation obsessed world, many lawyers are focused exclusively on their concerns as lawyers – avoiding bad results for their clients. This is often to the detriment of what the client wants – a creative solution that provides results.
How Does the Delivery of Elder Law Legal Services Differ from a More “Traditional” Approach?
Due to the age of many clients, elder law attorneys must be aware of and sensitive to a number of issues which do not affect a more traditional law practice. Some of these include:
- sensitivity to cognitive and physical limitations that may be associated with aging (mobility, hearing, etc)
- familiarity with medications and how these may impact the attorney/client relationship
- awareness of impact of family dynamics and how these impact legal and financial planning
- sensitivity to relationships needed to maintain well-being and autonomy
How Elder Law Attorneys Can Work with Clients
Many of us who practice elder law work with our clients in ways that are beneficial to our clients but that sometimes appear to fall outside the norm of a “standard” attorney-client relationship. These can include a need for the attorney to:
- conduct a separate meeting with an elder brought in by a family member
- consider whether joint representation (two people) or multiple representation is appropriate
- determine who is “the client” so as to identify the person to whom the attorney owes her duties
- assess whether a potential client has the capacity to enter into an agreement with an attorney for her services
- work productively within difficult or strained relationships among family members
- be able to work with other people who are involved in the elder’s care
For me, elder and estate law and mediation practice is satisfying work because of the human relationship and “helping” aspects. Sometimes people think this sensitivity might be inconsistent with the legal analytical skills required to come up with a sound strategy and to draft effective documents to execute the strategy, but I assure you that there are many of us who are attracted to this field because of this unique skill set required. And yes, many of us happen to be women, so we can relate to many of the caregiver issues in ways that are consistent with our own experience.
Elder law is an interesting and intellectually challenging area of practice and it is important that the client feel comfortable working with an attorney and discussing many personal matters. In my opinion, estate and elder law attorneys tend to be more responsive and respectful of people’s vulnerabilities – whether these are due to skepticism about what services an attorney is proposing to provide, a client’s difficulty with understanding what “the law” is relevant to a particular question, or a client’s state of fragile or frail health. I have to say that I enjoy working with other estate and elder law attorneys in the Colorado Bar Association’s Trusts & Estates and Elder Law Sections– they typically know how to play nicely together in “the sandbox.”
©Barbara Cashman, LLC www.DenverElderLaw.org