August 14, 2018
Author: Timothy M. Vogel
Organization: Vogel & Dubois, PA
I. Act within your expertise. Assemble a team to help your client.
Elder Law is a specialized area of law. You should consult an experienced lawyer for Long-Term Care Planning, especially when it involves MaineCare eligibility. You should work with a team of experts, especially a geriatric care manager, financial advisor, and long-term care insurance specialist, and where necessary an Elder Law attorney. Assemble a team of experts so that your client’s access to care as well as wealth is not put at unnecessary risk.
2. Who is the client? To Whom Do You Owe Loyalty and Confidentiality?
a. Who is the client? Dealing with Elders, Family Members and Agents
Especially in the context in which older and disabled persons and their family members consult attorneys, it is essential to determine who is your client.
- Is it the elder?
- Is it the child in a fiduciary capacity, such as agent authorized in the parent’s Power of Attorney?
- Is it the child in an individual capacity, such as seeking to petition Probate Court to be appointed Guardian and Conservator for the incapacitated parent?
- Has the person been previously appointed as a fiduciary such as a Personal Representative or trustee?
It is crucial to identify and maintain these roles when the case involves crucial medical / care decisions or large sums to fund long-term care services.
b. Consent to Joint Representation
When a lawyer represents more than one client as time, a signed Consent to Joint Representation letter should be obtained. This is common when represented a married couple or unmarried partners. This letter sets out
- The role of the lawyer as joint legal counsel
- Disclosure of information and an open relationship between the clients regarding information supplied to the lawyer
- The lack of attorney-client privilege in the event of a subsequent legal dispute between the two or multiple clients covered by the agreement. In addition, the lawyer is not able to represent any of the clients in connection with any such legal dispute and each client would be required to obtain separate legal counsel.
- The lawyer’s objective opinion that at this time, there does not appear to be any difference of opinion between the clients about the fundamental terms of the lawyer’s legal representation. However, it may develop that the clients will turn have differing opinions about plans and goals involving the legal representation. If the lawyer determines that there are material differences on one or more issues that cannot be resolved amicably or on terms compatible with the mutual best interests of the clients, the lawyer must at that time withdraw from the joint representation and will be unable represent any of the clients.
c. The client with and without capacity.
The Maine Rules of Professional Conduct address the matter of the client with diminished capacity. Rule 1.14. When a client’s ability to make adequately considered decisions in connection with the legal representation is diminished because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
Information relating to the representation of a client with diminished capacity is protected confidential information. When taking protective action the lawyer is impliedly authorized reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
d. The aging dysfunctional family
There are three possible models to the aging dysfunctional family that is involved with legal, financial and long-term care situations. Each circumstances holds it challenges in properly identifying and ethical legal services to the client while properly responding to the concerns of family members.
- The elder is experiencing declining cognitive and possible physical abilities. This is the common situation when the family is stable and the elder is developing Alzheimer’s disease or has suffered a stroke. The impact of the changes in the elder may cause both the elder and family members to relate to each other and act in dysfunctional ways.
- The elder is aging but stable. A family member is suffering from a physical, mental or behavioral condition that leads to dysfunctional family behavior. This could an accident, illness, addiction, or financial instability. The impact on the elder may be significant, especially when the unstable environment affects the elder, denies necessary care to the elder, or subjects the elder to financial exploitation. The family has experienced years or decades of instability and dysfunctional behavior due to a long standing condition, such as alcoholism. Some of the most difficult cases are alcohol related dementia. The dementia is significant and the family has years of emotional baggage that frequently blocks good are for the elder.
e. Using the right legal strategies at the right time.
“When a person’s only tool is a hammer, the room always looks like it is full of nails.”
This is noteworthy wisdom when lawyers and other geriatric orientated professionals work with older persons and their families, especially with long-term care planning and MaineCare eligibility.
First, determine who is your client. Help your client decide their priority of their values in this situation. It is important to stress that in these situations the primary value is access to good care. Closely related is how to fund that care through private sources or through MaineCare. Passing wealth to family members during life or after death is important, but sometimes it is behind other values.
Just because you know how to restructure assets to help a client financially qualify for MaineCare or place assets in a trust, it might not be the correct strategy for a particular situation. Determine the priority of values in a case. Apply the proper legal strategies for the situation. Consult with an experienced lawyer in a particular area of law if that is the best approach to serve your client.
Finally, financial exploitation does exist. Maine has good case law of undue influence as well as an Improvident Transfer Act, 33 MRSA §1021 et seq. Adult Protective Services has jurisdiction over cases where there is an incapacitated adult is the victim of abuse, neglect or financial exploitation. APS and law enforcement officials are much better about responding to and investigating financial investigation. Older persons, their families and their lawyers should refer appropriate cases to APS.