Staying Ethical in Elder Law

The Bencher | September/October 2022

By Jenna C. Jordan, Esquire

It is undisputed that our population is aging. There are currently more than 46 million people age 65 and over living in the United States. By 2050, the number of elderly persons in the United States is expected to be almost 90 million. Elder law is becoming more of a necessary practice as our elderly population grows. Are you preparing for our aging population? Is your law firm prepared to serve our elderly? Have you considered becoming an elder law attorney or adding an elder law component to your practice?

Most elder law attorneys handle a variety of legal matters affecting those who are elderly and/or disabled, especially issues relating to health care, long-term care planning, advance directives, estate planning, guardianship, asset preservation, retirement, Social Security, Medicaid, Medicare, disability, trust administration, and probate. The term “elder law” casts a wide net. Differentiate estate planning from elder law in your marketing if you only draft wills, advance directives, and trusts. Be specific on your website and in your advertisements. Never accept a case you don’t feel competent to handle.

Elder law, specifically estate planning, has one of the highest rates of malpractice. It is not uncommon to come across estate plans with numerous mistakes or improper devises, usually because the attorney did not understand the intricacies of the law. Many lawyers not competent in elder law will attempt to help their elderly clients with complicated elder law matters. A lawyer may have good intentions but insufficient skills to practice elder law.

Your client’s family members may have standing to sue you for malpractice. The statute of limitations on an estate planning matter usually does not begin until the death of the client, which could be decades after you drafted the estate plan. Malpractice insurance may protect you if you are sued for a perceived mistake or error. Carrying malpractice insurance is extremely important, especially when you are transitioning into a new area of practice. A simple misunderstanding or misinterpretation of the law could cost you your livelihood. If you, like many others, want to practice elder law and fight for this vulnerable population, now is a great time to do so. The following tips will help you stay ethical in elder law in case you decide to make the transition.

Be Competent

If you’re looking to add elder law to your practice, introduce one component of the law at a time. If you like following procedural rules, learn probate. If you prefer transactional work, learn estate planning. Before advertising “elder law” in your firm, determine what type of cases you are competent to take. If you are only comfortable with estate planning and guardianships, only advertise those two practice areas until you learn others. If you aren’t competent to take a particular case but could benefit from the experience, hire an experienced co-counsel and, with your client’s consent, work together. Most importantly, know the law. Attend continuing legal education (CLE) sessions, and review legislative updates and case updates.

Get involved in the National Academy of Elder Law Attorneys and in your state’s chapter. Join the elder law or probate section through your state’s bar association. Find board-certified elder law attorneys and ask them to mentor you. Join an elder law Facebook group or listserv. Focus your practice on one elder law issue at a time. Read elder law blogs. Attend networking events and build your network of elder law practitioners to reach out to with any questions that arise in practice. If you advertise yourself as an elder law attorney but don’t take the time to properly educate yourself on each elder law matter, you may be violating your ethical duties to your clients. As an attorney, you owe your client a high level of care and competence. An attorney who fails to meet these standards is at risk for legal malpractice.

Know Your Client

Always know who your potential clients are. This may seem obvious, but it’s something you must keep in mind over the course of the relationship with your clients and their family members. As an elder law attorney, over half of the time the first call I receive is not from a potential client, but from a relative or friend who is calling on behalf of a potential client. It is important that you speak to the potential client alone before agreeing to the representation. Remember who your client is and make clear to all parties involved that the client is to whom you owe duties of loyalty, care, competence, diligence, communication, and confidentiality.

Understand Capacity and Diminished Capacity

Although diminished capacity is observed frequently in the elderly, all attorneys should know their state’s rules regarding their duties to a client with diminished capacity. No matter what type of law you practice, you should always be certain that your client has the capacity required before agreeing to the representation. Clients must be able to understand what they are executing and the consequences of what they are signing. Some clients come to you with diminished capacity, and some may become diminished throughout the course of the representation.

Lawyers must treat a client with diminished capacity with the same attention and respect they would any other client. Although family members may be more involved, attorneys have an obligation to meet with potential clients privately to give them an opportunity to speak with you alone and ensure you are representing their interests.

If you are unsure of a client’s capacity, it can be advantageous to obtain a doctor’s letter stating in the doctor’s opinion that the client is able to understand the nature and consequences of the representation. “Sundowning” can occur in a person with dementia. “Sundowning” is a state of confusion that usually occurs in the late afternoon and typically continues into the night. Consider scheduling clients who may have diminished capacity in the mornings and/or meet with them in a familiar environment.

Family members or friends are usually more involved when your client has diminished capacity. The client may be unable to use technology, so the client’s relative corresponds with you via email. Always make it clear who the client is to all parties to prevent any misunderstandings. It is always good practice for a potential client to sign a retainer agreement. This will also serve to define the scope of the representation and help eliminate confusion.

Maintain Confidentiality and Preserve the Lawyer-client Privilege

Lawyers have an obligation to keep communication and information confidential. An attorney should not share information about the client or client’s representation without the client’s approval. The American Bar Association’s Model Rules of Professional Conduct state in Rule 1.6 that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted. The rule further provides that a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized access to information relating to the representation of a client. Attorneys have an obligation only to the client, not to the client’s family members.

Always Meet with the Client Alone

You and your client share attorney-client privilege. All conversations between you and your client should be confidential unless advised otherwise by your client. You should always explain this to a client before inviting a third party into the meeting with you and your client. Be certain you can communicate with your client.

Avoid Undue Influence

The Merriam-Webster Dictionary defines undue influence as “improper influence that deprives a person of freedom of choice or substitutes another’s choice or desire for the person’s own.” Be wary of undue influence. Don’t allow family members or friends to become too involved in your representation. Elderly persons are more susceptible to exploitation. Family members and friends who maintain distance from meetings between the lawyer and client and refrain from attending the signing meeting are less likely to be accused of undue influence.

Keep Detailed Records

As a general practice, you should keep detailed records of every transaction to protect you and your clients. Have your clients fill out questionnaires to collect certain helpful information that will be helpful to your representation. It is possible in elder law that you will need to testify to your client’s capacity down the road, especially if you practice estate planning. You should ask all of your clients the same competency questions if there is any uncertainty as to whether they have the required capacity.

Consider Waivers

If you disagree with a client’s course of action, make certain to put that in writing to protect yourself later. You don’t want to face an unnecessary malpractice claim if it’s something you warned your client about at the time. Protect your client by having a record of the client’s capacity if it is later challenged in a guardianship or probate proceeding.

Elder law can be a very rewarding practice area if you can recognize and avoid common ethical issues. If you do consider learning the practice of elder law, remember that you owe a duty of competency to your clients. Secure sufficient malpractice insurance. Remember that everyone makes mistakes. Stay up to date on the current and proposed legislation. Attend CLE and case update presentations. Network and co-counsel with other elder law attorneys. Stay apprised of the ethics rules for your particular state(s). If you strive to stay ethical, you can make a very successful transition into elder law. The aging population will appreciate having an ethical elder law attorney like you on their side.

Jenna C. Jordan, Esquire, is an associate elder law attorney in St. Petersburg, Florida, who practices estate planning, long-term care planning, asset preservation, Medicaid, probate, and guardianship. She is an Associate member of the Thomas E. Penick Jr. American Inn of Court.