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How To Avoid Abuse Claims In Your Elder Law Practice
Pitfalls And Prevention

By Gregory Wilcox, Esq.

My work often involves planning for elderly people who are not my clients. Planning for non-clients may be unusual in an estate planning practice, but is commonplace in an elder law practice. This is because the elderly person who needs the planning is often compromised in some way, and a spouse or adult child almost always initiates the call to a planning attorney for help. However, this situation is rife with risk for the attorney. If an attorney allows himself to appear to be representing the elderly person without actually meeting with and determining that elder’s desires, he might later be charged with having failed to represent him adequately. Even if it’s clear that an attorney does not represent the elder, unless he takes steps to make a record of the elder’s independent action, the attorney could easily become liable to his client for planning work that quickly unravels when challenged on the basis of lack of capacity, undue influence, or elder abuse.

So here is a grab bag of measures that I take in my practice to prevent all these bad things from happening. Most will be familiar (hopefully), some less so.

1. Independent Legal Counsel
Probably the most important measure an attorney can take is to make sure that the elderly person has independent legal counsel before he or she signs anything.
What are the corollaries? Think twice about giving your new planning documents to your client before you have a pretty good idea about who is going to be representing the elder. Put this limitation into your written employment agreement, e.g., “planning documents will not be delivered until arrangements are made for independent legal counsel.” Develop a list of attorneys who are willing to represent elderly people in this capacity, and who have skills in determining legal capacity and freedom from undue influence (such as the need to meet alone with the client, to ask questions that are not leading, and to know the legal standards for legal capacity and undue influence).

You will need to sell the need for a second attorney to your skeptical client. You will explain that unless his elderly relative has independent legal counsel, not only may the entire plan and all your documents be set aside, but he might be charged with criminal elder abuse. You can explain that the employees of county welfare agencies that evaluate Medi-Cal eligibility are “mandated reporters” of potential elder abuse they notice from applications, that they are trained to look for just the kind of planning changes being proposed, and that they are potentially criminally liable for failure to report. In my practice, I relate my own experience being investigated by the Burlingame Police Department for possibly conspiring with my client to commit elder abuse on his father. After hearing all this, no client of mine has ever resisted paying for a second attorney.

2. Make Sure the Elder’s Gifts are in Writing

A number of months ago, I wrote an article for The Legal Network News (Winter 2010) arguing that practitioners should use a “Gift Declaration” to memorialize the gift intentions of an elderly person. Wills and trusts, life insurance policies, deeds, and a dozen other documents require a written memorialization – and we would not think anything less would make sense. However, gifts of assets are usually made with no documentation at all! You should not let this happen. Make sure that there is a written, signed, and dated document that reflects any gifts that an elderly person is proposing to make.

3. Know the Applicable Ethics Rules

You should become very familiar with the state’s conflict of interest rules in California Rules of Professional Conduct, 3-310. A particularly troublesome conflict rule in my practice is the one on compensation. It seems intuitively obvious that the client should be the one who pays the client’s legal bills. However, more than half of my clients whip out a checkbook at the end of the first meeting and expect to pay me from their mom or dad’s account. To keep out of trouble, I will often suggest that the client pay me instead from his own funds and let mom or dad reimburse him (generously offering to hold his check until it will clear).

4. Know the Applicable Capacity Rules
Practitioners are not supposed to do work for a person without legal capacity. Nevertheless, they are entitled to reach their own conclusions about this issue. Indeed, an attorney has no duty (aka, liability) to beneficiaries to assess the capacity of a client making testamentary dispositions, Moore vs. Anderson, Zeigler, et al, (2003) 109 Cal. App 4th 1287. Nevertheless, diminished capacity opens the door to later claims of undue influence and abuse. I find it helpful to use Probate Code §812 as a checklist for determining capacity. It has the advantage of being both official and also a pretty tough and searching list of considerations. If your client survives the questions on this list, I doubt there can be any serious later challenge to his capacity.

5. When in Doubt Get a Neuropsychologist
If there is real doubt about an elderly person’s legal capacity, practitioners should know where to send him for an evaluation. In most cases, the appropriate expert in this area is a neuropsychologist. Better than physicians, these professionals are the ones trained and equipped to run the tests required for a reliable evaluation of mental capacity.

6. Discover the Potential Adversaries
It is easy to imagine a case where no matter how error-free your planning may be, there is a disgruntled family member waiting in the wings ready to file suit after the death of the elder. It is also easy to imagine that you might find it hard to refuse this particular new case because of your strong motivation to do good or to do well (or probably both). Nevertheless, you really need to consider the adverse consequences of being dragged into an endless family quarrel – for which you will receive no compensation.