Support your clients’ autonomy while gaining peace of mind.
When working with elderly clients or dealing with aging family members, it can be challenging to balance their wishes and their desire for autonomy with the very real need to keep them safe.
Research shows that senior citizens may be more susceptible to scams, undue influence, and other outside factors that may lead them to make decisions that are not in their own best interests. So, as practitioners working with the elderly, it is our responsibility to make sure that our senior clients feel supported and able to make their own choices, but also to ensure that safeguards are in place so that the choices made are responsible ones.
In my experience working with elderly men and women as they plan their estates, write or revise their wills, and more, I have accumulated a depth of knowledge about how to do this. It is possible to support an older adult as they make important health, financial, legal, and family decisions as a vulnerable older adult, but critical safeguards need to be there.
In this post, we’ll discuss the optimal balance between autonomy and precautions as well as some of the safeguards that can be deployed, based on my experience and the experience of my colleagues in the field.
We asked some of our legal colleagues to weigh in on why it is important to help elderly clients retain their autonomy during the legal process.
Kimberly Swierenga, an elder law attorney in the San Diego area, shared this about elderly client’s mindset and what they need from their legal counsel:
Elderly clients, like all clients, are nervous about the unknown. They need lots of reassurance they are doing the “right thing” and will not be left to fight their legal battle alone. They appreciate regular updates, even if only a quick call to confirm nothing new has happened in their case. Facts, of course, replace fear.
In particular, elderly clients seem to struggle with feelings of shame, embarrassment and betrayal. In my experience, just the act of reaching out to a lawyer requires courage from an elderly client.
Attorney Blake Rummel of Weinstock Manion, an LA-based estate planning firm, shared this:
Elderly people need help with legal process (as do all inexperienced litigants) since there is so much at stake for them in a potential conservatorship setting. The Court assigns experienced attorneys to assist them since many personal fundamental rights and freedoms are at stake (similar to the assignment of a public defender in a criminal setting).
An elderly client struggles with the fear of a loss of autonomy. When coupled with the decay of the aging process, the elderly client has even less ability to weigh advice and act in their own best interest. This is when the attorney digs deep as a “counselor at law” to help the client understand the best options.
Attorney Deborah Keesey of BBSK Law, another esteemed Southern California estate planning firm, built on that, saying:
Elderly clients need more help with the legal process largely because access to legal information and the court system has become more difficult to navigate. Much of the legal filings and information sharing is done through a computer network. The elderly may struggle with using computers, retrieving digital information for guidance on issues, and in vetting the proper legal advisor for their situation. This can be confusing and make it difficult for the elderly to get help. Communication can also be hampered because so much is done through electronic mail, with the need to scan and send documents in a timely manner.
Moreover, as we age, we often experience some degree of cognitive decline, making us vulnerable to scammers and susceptible to undue influence. The elderly may not know how to reach out for help, and may not be able to obtain information that will help them protect themselves.
Attorney Stephen Garcia, Senior Partner at Garcia & Artigliere, shared more about why he helps his clients establish safeguards based on some of the particular risks he’s seen elderly clients face.
The elderly face challenges of problems of proof, failing memories due to age, and intentional delays by the defense allowing for death which in many states, California for example, leads to a loss of non economic damages, also known as “pain and suffering.” From the other side, there is a significant amount of money at play in long term health care litigation and unscrupulous practitioners on both sides enrich themselves at the expense of duties they owe to their elderly clients.
Balancing Autonomy and Safety
What does the optimal balance between autonomy and safety look like? Simply put, it’s supporting the whole person. This means considering the full spectrum of their needs, which may be medical, behavioral, and socioeconomic, and coming to understand them as a person beyond just their age or condition. When interacting with clients using a whole person care approach, it is paramount that attorneys support the agency and autonomy of their elderly clients.
However, certain impairments that come with age can erode one’s judgment, resulting in the potential to make poor decisions and fall victim to undue influence. This makes it vital to develop a relationship with the older client by meeting individually with them and obtaining a sense of their history and values so you can ensure that all care decisions are made in their best interest.
When working with elderly clients, it’s also important to keep in mind that not all elderly people are alike. Aging impacts each of us differently, which is why it is vital that attorneys working with the elderly examine their own attitudes about aging in order to successfully communicate with their older clients. Attorneys should recognize that most elderly clients experience an increase of limits on their autonomy as they get older, and thus may be experiencing threats to their physical and financial independence. Due to this, it’s important that the attorney avoids overprotective and overly intrusive responses.
An example of this over-intrusiveness may be when an attorney concludes that their elderly client needs a conservator or guardian in a case where a limited power of attorney may be sufficient. It can also take the form of the attorney listening more to the client’s family than the client themselves or trying to tell the older client how their life should be run.
Following stereotypes about aging can lead attorneys, doctors, and other professionals to assume that older clients do not have the ability to make their own decisions or explain their own problems. Looking at the client as a whole person rather than simply an elderly person and weighing the individual’s needs can prevent this.
We also asked our legal colleagues to share how, in their experience, they’ve balanced clients’ desire for autonomy while also protecting them.
Kent Kristof, partner at Kristof & Kristof, estate, trust, and tax planners in Pasadena, shared that based on his experience, he knows firsthand how difficult it can be to address the balance between autonomy and protection. He went on to say:
In our practice, we have seen time and again that a strong support network, armed with flexible legal documents, is key to balancing autonomy and protection. Friends and family, who have known the client for years and through the ups and downs of life, are often the best guardians and are in the best position to notice if something is “not right” with the client.
With the client, we work hard to help create flexible legal tools the support team can use to step in when needed. If the client needs short-term assistance, our documents allow a trusted supported to help the client as long as she needs. If something more major is needed, our documents are designed to allow for long-term support.
As Spiderman’s uncle noted, with great power comes great responsibility. Those people who are supposed to protect our client may also end up abusing our client. We have lengthy conversations with our client about their support team and why those are worthy of trust. Being able to rely upon professionals, particularly Dr. Wood, to help clients that may have declining or limited capacity is crucial.
Another colleague, attorney Anne Marie Murphy at Cotchett, Pitre & McCarthy LLP, shared her experience-based insights into how elderly clients may feel, as well as how she helps them through difficult legal proceedings.
Elderly victims of financial elder abuse often struggle with feelings of embarrassment and shame, it is important to work through these feelings with elderly clients. It is also important to spend time with elderly clients (and often also with their supporting family members) to walk through procedural developments in the case and to prepare them for depositions and trial testimony.
Lauriann Wright of Wright Kim Douglas also had some great insight from her years of working in elder law.
One great tool for elders who need a conservatorship, but want to maintain a level of financial autonomy, is the court’s approval of an allowance to the conservatee. Meaning, the conservator of the estate is required to pay to the conservatee a certain sum every week as an “allowance” and the conservatee can spend it however she wants. Under Probate Code §2421, the conservator need not account for how the allowance is spent, so the conservatee does not need to keep receipts. It can be paid in cash, or for conservatees who still want to maintain some bill-pay activity, deposited into a checking account for them to pay bills on their own. For elders with more substantial resources, I have seen the court approve as much as $500 to $1,000 a week as an allowance.
Another great option for elders who are concerned about the loss of autonomy with a conservatorship is to “try out” a conservatorship with a temporary conservatorship by consent for a few months. If an allowance is also ordered, the loss of perceived autonomy is usually not as bad as the elder thinks it will be.
A contested conservatorship proceeding can be incredibly stressful on an elder, and cause much strife with their family who (usually) are only trying to protect them. As Court Appointed Counsel, I of course advocate for their wishes in court. But, just as I would with any other client, I counsel them on their options and alternatives to trial. I counsel them on the use of these tools, or other ways to limit the control the conservator will have over them, carving out as much independence as possible for them. As “least restrictive means” is the cornerstone of conservatorships in California, our probate judges are very accommodating to creative orders intended to maintain conservatee automony at a level they can safely handle under their unique circumstances.
And finally, attorney George Vausher of Fitzgerald Yap Kreditor LLP suggested a few concrete ways to support elderly clients:
I would say that most clients need help in establishing a plan that is flexible enough to cover situations that come later, which situations are not anticipated. What seems to occur often is the the estate plan documents drafted for the clients are drafted too quickly and that the clients do not take the time to discuss various alternatives and possibilities. Also, there is too much tendency to use boilerplate forms that cause confusions and problems for the clients in the future. I would certainly recommend that lawyers take plenty of time to learn about the client’s families and personal situation and take that into account when drafting documents.
Safeguards and Best Practices for Working with the Elderly
When working with the elderly, coming to a decision that all parties are involved in making can be a complicated task. However, by being mindful of the elderly client’s needs and employing a few simple safeguards, you can ensure that the decision-making process runs as smoothly as possible and in the best interest of all involved.
Supporting the whole person requires being honest with your elderly client about what is happening, but care should be put into doing this to prevent them from feeling bad or embarrassed. The conversation should always be led with intentions of care.
Make it clear to your client that everything you do is with their best interest in mind and give them time to process any requests. They may not have given much thought to who will care for them as they age or how they will handle money. This can be an emotional topic, so be sure to approach it with patience and compassion. Once you begin discussing their needs, make it clear that you will be letting them make the decision whenever possible. This puts the power back into their hands during a time when they may feel powerless.
Setting up the correct emotional safeguards is always easier when the elderly client’s decisional capacity is evaluated. In general, decision-making capacity refers to one’s ability to make their own decisions. This is considered essential to the ethical values of respect for autonomy and is a key component of informed consent. Therefore, determining whether an individual has adequate capacity to make decisions is an inherent element to interactions between an attorney and an elderly client. An elderly client is deemed competent if they can demonstrate an understanding of the situation, awareness of what can happen as a result of their choices, and the ability to reason through and communicate their decisions.
Additionally, elderly people are particularly susceptible to financial issues, including financial elder abuse and fraud, which is why there are safeguards that families and attorneys can take to prevent this from happening. Power of attorney gives a trusted individual the legal authority to make decisions on behalf of another person in specified matters, including finances. While this solution can prevent elderly individuals from making poor financial decisions, it has the potential to allow the individual given power of attorney to misuse it by making decisions that are not in the best interest of the elderly individual.
A joint bank account is a less intrusive option that supports the autonomy of the elderly individual while allowing a trusted family member to keep an eye on their older relative’s finances. However, again, this can open up the potential for financial elder abuse if put in the wrong hands. You can support the autonomy of your elderly client with either of these options by allowing them to choose a trusted family member to help manage their finances while also evaluating whether this individual will indeed act with their elderly relative’s best interests in mind.
In addition to emotional and financial safeguards, there are several general safeguards that should be utilized when working with an elderly client to ensure that their autonomy is respected. These include:
- Being willing to be uncomfortable and set boundaries
- Supporting the care decisions of the elderly client
- Having a neutral 3rd party present at all meetings
- Considering independent medical assessment by a forensic neuropsychology expert
- Consulting another attorney for independent review
Working with an elderly population brings with it some unique challenges, including increased vulnerability. There is no perfect solution that will prevent every single issue. However, by using the tips and best practices I’ve compiled through my experience as a forensic neuropsychology expert focusing on topics like decisional capacity, undue influence, and elder abuse, you will be able to support your clients’ autonomy while also feeling the peace of mind that comes with knowing certain safeguards are in place.