50 years ago... Inside... - Chattanooga Bar Association

10 Friday, June 13, 2008 HAMILTON COUNTY HERALD
Commentary: Anticipate problems to avoid ethical elder law dilemmas
by Kimberly E. O’Leary
The Daily Record Newswire
After almost 20 years of
practicing law, I joined an
elder law practice in 2000. I
had represented a wide range
of civil clients in a variety of
matters — more a generalist
than a specialist — and
assumed that representing senior
citizens would be similar to
my past practice.
After eight years of elder
law practice, I can say with
great confidence that I
encounter on a regular basis
ethics questions that would
have curled my hair in my previous
jobs.
In elder law, ethical
dilemmas abound in regular,
daily encounters with clients
right in the heart of my law
office. I have learned — and
am still learning — that it is
critical to anticipate problems
before they occur. Once the
dilemma springs into being, it
is very hard to solve in a satisfactory
manner. The lawyer
who can anticipate the problem
can prevent it from occurring.
For example, during the
first encounter with the office,
it is sometimes hard to know
who the client is. Some senior
citizens call to make their own
appointments. But frequently,
initial contacts are made by
adult children, care workers,
social workers or neighbors.
Most of the time callers have
the welfare of the senior citizen
in mind and they understandably
want to be involved.
However, in our office, as
in most offices that represent
the elderly, the elderly person
is considered the client and is
escorted into the interview
alone.
The Elder Law Clinic at
Wake Forest School of Law
developed a brochure called
“Why Am I Left in the
Waiting Room?” (find it at
www.abanet.org/aging/publi-
WOMAN WONDERS
WHY ALL HER LOVERS
HAVE BEEN CHEAP-
SKATES
DEAR AMY: I am 44 and
have attracted cheap men all
of my life.
Looking back, I realize
that my boyfriends were
cheap. My husband is cheap
(we live comfortably), my
lovers have all been cheap
with me, but what’s even
more painful is that they
have told me about the gifts
they bought for their wives
and former mistresses.
My current lover and I
have been together for more
than two years. He is a successful
physician and enjoys
a nice lifestyle.
I have enough “things,”
but it is the attention and
thought that counts, and I
think that a long-term relationship
warrants gift-giving
“just because” — to make
your lover happy.
cations/docs/4cbrochure.pdf)
to explain what to most
lawyers is a pretty basic concept
— that lawyer-client confidentiality
exists in private
between a lawyer and a client.
Even after establishing
who the client is, there can be
complications. Some of the
people helping seniors think
they know what is best for the
senior, even if it is not what
the senior wants. Third parties
might see the involvement of
these “helpers” as grounds for
undue influence.
Having a hard and fast
rule that you interview the
senior alone first, only bringing
in others to help if the situation
warrants it, can prevent
the ethical dilemma. Keeping
the elderly client abreast of
every action, even if someone
is helping with the case, can
also prevent ethical problems.
Another common ethical
issue in elder law is couples
who want joint representation,
frequently for estate
planning. The ethical rules
squarely require lawyers to
decline representation of one
client if “representation will
be directly adverse to another
client, unless ... the lawyer
believes the representation
will not adversely affect the
relationship with the other
client ... and each client consents
...” (Rule 1.7, Rules of
Professional Conduct)
The comment to the rule
states: “The critical questions
are the likelihood that a conflict
will eventuate and, if it
does, whether it will materially
interfere with the lawyer’s
independent professional
judgment in considering alternatives
or foreclose courses of
action that reasonably should
be pursued on behalf of the
client.” (Comment to Rule
1.7, p 782) It is not difficult to
imagine scenarios where the
economic or social interests of
one member of a couple might
collide with those of the other.
Ask Amy
Advice for the Real World
By Amy Dickinson
Tribune Media Services
He once said that he is
afraid that my husband would
see a present and question it,
and I assured him that I
would make sure my husband
didn’t see it. He also said I
should not give him anything
because his wife might see it.
What advice can you
give me? I need to know what
I am doing wrong. Is there a
profile of women who attract
cheap men? — Wondering
DEAR WONDERING:
There is a profile of women
who attract cheap men.
These are women who don’t
value themselves, who
cheapen their relationships
by being unfaithful and who
could be “bought” for the
price of an occasional present
from an unfaithful lover.
You sound very unhappy.
Your life sounds sad. When
you start to value yourself,
others will start to value you.
Then the gifts (non-material
but valuable all the same)
Elder law practice is that
lawyers typically and routinely
represent both members of a
couple in these matters.
Because the possibility is so
high that a conflict might
develop, elder law practitioners
have developed protocols
for explaining to clients why
they should each consider separate
counsel and that the
lawyer will have to withdraw
from both if an actual conflict
occurs.
Most lawyers I have consulted
present each client with
an example of such a conflict,
such as one of the clients
revealing that he or she has a
child the other client knows
nothing about. Lawyers disagree
about what to do if that
happens (do you tell the other
party?), but lawyers agree that
whatever action you take
should be communicated in
advance, before either side
tells something to the lawyer
he or she will regret later.
Each office should have a
detailed protocol to explain
this potential conflict to couples.
A third common ethical
problem is competency — at
the time of representation and
later on. Many people are
mentally razor sharp into their
hundreds and for their entire
lives. Some experience mental
decline, often in slow and
barely perceptible ways.
Many people keep strong,
close, stable relationships with
family and friends all their
lives. Some find new friends
and become alienated from
family, and sometimes this
happens when they age.
All people decline physically,
although at different
rates and in different ways.
Sometimes lack of complete
hearing or vision or a slowing
of speech can be misinterpreted
as mental decline when it is
not. When a client who is 30
wants to give all of her money
to charity, she is considered
will start to flow.
DEAR AMY: My best
friend of 10 years and her
fiance recently announced
their engagement. He’s in
the National Guard and is
leaving for a tour of duty.
Their original wedding
date was a date that I had a
work obligation and had no
way out of. I was upset that I
was going to have to miss it,
but there was absolutely
nothing I could do.
My friend called me last
night saying they had
received her fiance’s tour
papers. He’s not leaving until
September, which is later
than originally thought. She
decided to change the date so
that I could be there. After
all, we’ve been talking about
our weddings for many years,
and we were both upset I
would have to miss it.
Then to my dismay she
didn’t ask me to be a bridesmaid!
She moved the date
just for me, so it makes sense
to me that she would then
want me to be in her wedding.
And on top of that, one
of the girls she has chosen to
be a bridesmaid is a girl she
has known for a year or two
and recently had a huge
falling out with.
honorable. When a client of
100 wants to give all of her
money to charity, she is considered
mentally questionable.
I have seen very old
clients labeled “paranoid” for
complaining about personal or
financial care by a family
member, only to discover upon
investigation that the care was
indeed substandard by any
objective measure. These
complexities require lawyers
to understand that there exist
a wide range of medical and
mental competencies, and to
ask whether a client is competent
to perform a specific act,
rather than some generic competency
standard.
For example, if a person
knows what they have and
who are the “natural objects of
bounty,” the law says that person
is competent to execute a
will. Other standards apply to
other transactions.
Even if a person comes to
you clearly competent and
clearheaded, in the prime of
life, it is foreseeable that, at
some point in the future, that
person may not understand
what is going on. For this reason,
many clients engage in
planning for a future when
they might not be able to
make decisions.
Lawyers frequently fail to
discuss how the client wants
the lawyer to handle disclosure
of confidential information
in a future when the
client cannot waive access to
private attorney-client materials.
For example, a 60-yearold
client may indicate she
does not trust her siblings and
wants her nephew to handle
her affairs should she become
incompetent. Ten years later,
if one of the siblings comes to
your office asking for help
obtaining a guardianship
against his incompetent sister
(your former client), not only
can you, of course, not represent
the brother, but you also
Am I being childish or is
my frustration warranted?
I’m very upset that I’m
not going to be a part of her
wedding.
Should I approach my
best friend about this or simply
be happy for her and just
be at the wedding? —
Confused
DEAR CONFUSED:
Your friend may not have
changed her wedding date
just for you, though it’s good
that you can now attend.
It’s fine to say to your
friend, “I have to be honest
with you — I was hoping to
be a bridesmaid.”
But don’t pressure her,
ask her to explain her reasoning
or expect her to
change her scheme because
of your statement. Simply
express your wish and then
let it go.
Beyond that, remember
that this is her day and be
happy for her. Attend the
wedding, be a good sport and
do your best to celebrate and
enjoy her happiness.
DEAR AMY: I’m
responding to the letter from
“Loyal Fan,” whose neighbor
is a cigar smoker.
While I completely agree
with the advice given by you
cannot inform the nephew of
your client’s wishes absent an
informed waiver obtained
when the client was competent.
Similarly, attorneys often
obtain permission in advance
to share a copy of a will with
persons the client nominated
to serve as personal representative.
However, the client might
want his attorney to share a
copy of the will with any family
member who asks for one.
Does the client want her
attorney to provide information
if someone is challenging
a will? Elder law attorneys
should have conversations
with every client to find out
whether the client wants the
attorney to share her wishes or
copies of documents with anyone
if she becomes incompetent
or after her death.
The application of the
Rules of Professional Conduct
to elder law practice make this
area of law one of the most
interesting real-life applications
of legal ethics that exists
in law practice. The National
Academy of Elder Law
Attorneys (NAELA), recognizing
how difficult the ethical
issues are, has developed
aspirational standards for elder
law attorneys which can be
found at
www.naela.com/PDFFiles/aspirationalstandards.pdf.
The struggle to protect
the dignity and autonomy of
our senior citizens with the
desire to help those who are
struggling with mental confusion
is a constant tension in
this arena. Elder law practitioners
should take the time to
consider in advance a range of
probable scenarios and discuss
these with their clients.
The clients will be happy
the attorney is thinking about
these problems in advance,
and the attorney will minimize
the risk of making a false step.
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and the smoking researcher
you quoted, it can be hard to
tell a person that they can’t
smoke a cigar on their own
patio.
My suggestion is to set
up a floor fan on that side of
the patio that will help blow
the smoke away and to turn
it on when he lights up. It
might serve the dual purpose
of letting her get a breath of
fresh air and letting him
know that the smoke is
affecting his neighbors. —
Rory
DEAR RORY: The cigar
smoker in question certainly
excited many readers.
I’ve received dozens of
letters suggesting that the
judicious placement of a fan
could be just the thing to
solve this particularly smoky
problem.
(Send questions via email
to askamy@tribune.com
or by mail to Ask Amy,
Chicago Tribune, TT500,
435 N. Michigan Ave.,
Chicago, IL 60611.)
© 2008 BY THE
CHICAGO TRIBUNE DIS-
TRIBUTED BY TRIBUNE
MEDIA SERVICES, INC.
© 2008 Tribune Media
Services. All rights reserved.
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