Elder Law Ethics or “Why Am I Left Sitting in the Waiting Room?”

View from the roof of the Denver Art Museum

I am openly borrowing from the title of an American Bar Association pamphlet “Why Am I Left in the Waiting Room?:  Understanding the Four C’s of Elder Law Ethics.”  You can read the pamphlet here.    Estate planning is a law practice area that has historically had joint representation as a feature.  This is typical where a married couple, partners in a civil union, or committed partners, do their estate planning together.  Most lawyers have a written fee agreement for this and for a husband and wife the agreement often contains a joint representation waiver which gives both clients the opportunity to consent to one attorney representing them (this typically makes the most sense from a planning and financial perspective) after the attorney advises them of the unique nature of joint representation.

Elder law practice often encompasses the more traditional estate planning services but there can be nuances to the attorney-client relationship when an adult child brings an elder to an attorney’s office.  It is not uncommon for an adult child to find and “vet” an attorney on behalf of the parent.  Sometimes the adult child may wish to pay for the legal services.  Often the adult child has been very involved in the parent’s day-to-day life, but the nature of the attorney-client relationship has boundaries.  The pamphlet referenced above goes over the “four C’s” which an informed client ought to consider, and with which the attorney is assumed to be familiar.  The attorney, after all, is the license holder who is bound to uphold the Colorado Rules of Professional Conduct.

So – what are the “four C’s?

  1. Client Identification: attorneys must communicate and make clear to the client(s) who is the client, and oftentimes – who is not the client.  Even if the elder is not footing the bill for the consultation, the elder is the attorney’s client.
  2. Conflicts of Interest: lawyers have an ethical duty to avoid conflicts of interest – these can crop up whenever an attorney represents more than one person.  When an attorney represents several people with joint or mutual interests, the lawyer is bound to identify potential conflicts of interest and determine whether joint representation is appropriate or allowed.  This can be particularly problematic in an elder law context where one attorney talks with an elder parent and an adult child and it is not clear who the client is – this is why #1  above is #1! Identifying the client means identifying the person to whom the lawyer owes all applicable duties.
  3. Confidentiality: A hallmark of the attorney-client relationship is communication and lawyers must keep confidential the communication between clients and lawyers confidential.  By way of example, it means that if I represent an elder parent and draft a durable power of attorney for them and they want me to be able to talk to their adult child agent about how to use the POA if the need for using it arises, I need to get specific authorization from them to talk with the adult child agent – because the elder parent is my client and I owe a duty of confidentiality to my client.
  4. Capacity: the ABA pamphlet refers to this as “competency” but I find the term “capacity” more appropriate.  Sometimes an adult child will inquire about getting a will drawn up for their parent who is in failing health. Some folks think that a lawyer can simply take instructions from another person about what the elder wants in their will and present and then present such a document for signature by the elder.  This is not appropriate on many levels.  Lawyers are duty bound to get informed consent from their client – on whose behalf the document is prepared –  for a particular course of action.  This means educating the client about the range of alternatives to choose from and then allowing the client to make their own choice among the alternatives.   This can be challenging in the elder law field – particularly when a client may be hard of hearing, vision impaired, or experiencing temporary or ongoing cognitive decline.  The lawyer must determine (as with any type of client) whether a client has the capacity to enter into an attorney-client relationship.

The bottom line for elder law attorneys is that we don’t want our clients’ wishes and choices made to be subject to scrutiny and undoing at a later date because the lines of 1, 2, 3 and 4 above were blurred!  If you bring your mom or dad or Aunt Ethel into my office, rest assured that I will talk to you as well – but I will have you spend some time outside in my waiting area.  Don’t worry, there are good magazines to read.

©Barbara Cashman     www.DenverElderLaw.org

Law As A Healing Profession

For you detractors who scoff at the idea of law as a healing profession …

I was inspired to write this post after reading a recent article by Mark Glover, “A Therapeutic Jursiprudential Framework of Estate Planning,” in 35 Seattle Univ. L. Rev. 427 (2012).

The author is an assistant professor at Louisiana State University.  The article begins with a reference to Moby Dick – specifically when Ishmael’s brush with mortality in the attack on the longboat in which he was riding was attacked.  Having survived the “jaws of death,” Ishmael subsequently puts his affairs in order and makes a will, and feels as if a stone was rolled away from his heart.  Glover’s article looks at therapeutic jurisprudence, the aim of which he describes as “to shape the law in a way that maximizes its therapeutic potential without undermining the law’s fundamental purposes.” at 429 (citation omitted).  Why did I read this article and describe it here?  Glover’s stated aim is to spread the word about therapeutic jurisprudence in the estate planning and administration context.  I was interested!

I liked his point about one of the “antitherapeutic”  aspects of making and finalizing a will – that the experience is essentially “taboo-defying,” and as such, tends to be upsetting to many people.  In my experience I think this is a stretch.  I work with many people who have been thinking about estate planning for a long time, and it takes them a while to come in and get started or to complete the process.  I can also say from my own experience of updating my will and POA just several weeks back, that a couple folks in my office looked at me as if I was not telling them something important about my life (or death).  Therein lies the taboo.  It is insidious!  Next he identifies seven concerns that psychologists have identified that lead to a fear of death:

  1. They can no longer have any life experiences;
  2. They may be uncertain as to what will happen to them if there is a life after death;
  3. They may be afraid of what will happen to their bodies after death;
  4. They realize they will no longer be able to care for their dependents;
  5. They realize that their death will cause grief to their relatives and friends;
  6. They realize that all their plans and projects will come to an end; and
  7. They may be afraid that the process of dying will be painful. (citation omitted)

Avoiding estate planning helps some people avoid thoughts of their own mortality. I must ask the practical question – and how is this a good thing? It is about perpetuating death-denial that pervades our culture.  The crazy thing is that busting the “taboo” of thinking about death by making an estate plan is – I believe – an invaluable way to think about what is important to us in our lives right now, and are we living the kind of life for which we want to be remembered?  I already broached this topic in an earlier post, about writing your obituary now. [link to post]  From this article I learned of a study that (more than thirty years ago) that referred to the professional estate planner’s anxiety about raising the issue of mortality with clients?!  I don’t think I know of colleagues with that type of skin.

Glover also looks at estate disputes and familial conflict and the tangled web of concern over who gets what when there are children and assets involved and everyone may not get along.  I liked his footnote citing an article by M. Begleiter entitled “Anti-Contest Clauses: When You Care Enough to Send the Final Threat.”  This is a primary reason that I advocate mediation clauses in wills. The mediation clause cannot, under present law, force disputing parties to go first to mediation prior to a challenge in court, but a testator can certainly express herself about how she intends her children to get along and resolve any disputes they may have. A good article by Lela Porter Love about mediating probate matters to preserve and promote family harmony can be found here.

In the second half of the article, Glover finally gets to looking at the “therapeutic consequences” of estate planning.  He seems to start with the premise that only sailors on whaling ships (like Ishmael) should be entitled to feel good about getting their affairs in order.  I would tend to disagree!  One of the first benefits he discusses is that of self-determination, namely that deciding in advance who will be your beneficiaries knocks out the possibility of others determining the distribution (even “the government” meaning state laws of intestacy).  He also cites a helpful article about the “Power Tools” of estate conflict management by Paul Fisher, available here.

Finally, I liked what Glover had to say about the will execution ceremony.  It is and ought to be recognized as an important achievement, one which should provide the testator an amount of satisfaction.  The typical will ceremony in Colorado involves two witnesses, and can provide a certain amount of relief in that the anxiety remaining about mortality will often be replaced by a feeling that a person has put his or her affairs in order.  The last bit of fascinating information in this article concerns the origins of the Nobel prizes.  Grover points out that Alfred Nobel was the reader of a premature and highly critical obituary, as it was erroneously originally reported that Alfred, not his brother Ludvig, had died of a heart attack.  As a result of the “merchant of death” description in the obituary, Alfred Nobel bequeathed the bulk of his family fortune and his family name to the prizes that rewards persons making contributions for the benefit of humanity.  I recommend this article for reading by anyone who questions the therapeutic benefits of making a will, writing a testament, or executing durable powers of attorney.