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Emergencies and ethical issues in elder law practice

On Behalf of | Mar 13, 2023 | Elder Law

Emergencies happen in my elder law practice when I’m called upon to act urgently in an unusual situation. Elder law is all about people and relationships. It’s all very personal. Emergencies of various kinds can make my job challenging, and often bring in sharp focus the legal ethical questions that frequently come up.

The three main areas in which my firm is active are estate planning, elder and disability law planning, and estate administratio.

In estate planning, emergencies often happen when a client can’t come to my office, and I need to make an out call to a home or care facility. A sudden illness or injury often makes clear the need to have arrangements in place, while you still can. A house call or hospital visit can present logistical problems especially in arranging for signings with witnesses, and notarization. This was particularly difficult during the height of the COVID pandemic.

A hospital outcall usually means that the person I’m trying to help may be seriously ill.  If so – and in all such cases – a person making estate plans must have legal capacity to do so. That is, they need to have the ability to make a decision and execute a legal document. The legal standard of what constitutes capacity to sign varies depending on whether you are signing a Will, Power Of Attorney, Trust, Etc.

For example, the capacity to execute a will requires that someone “must have an intelligent knowledge, even though his memory may be impaired by age or disease, regarding: 1. the natural objects of his or her bounty; 2. the general composition of his estate; and, 3. what he or she desires to do with his or her estate.” Though the details may vary according to the specific act intended, generally, in a nutshell, you have to know what you’re doing.

Whether in an emergency or not, I always need to assess that my client has capacity to undertake the decision and action contemplated. Though I’m not a health care or social service person, I have an obligation to make a professional evaluation from a legal perspective. Sometimes, when capacity is questionable or questioned, I do actually call upon medical professionals for such an assessment.

A critical question arises when I may suspect that my client is vulnerable or impaired, and is subject to the unscrupulous designs, abuse or “undue influence.”  In addition to obvious and objective signs of fraud and coercion, or greed and manipulation, I also pay attention to the “smell test.”  If it doesn’t feels right and proper or something doesn’t ring true, then additional caution or investigation is required.

In Elder and Disability Law, many emergencies involve admissions to care facilities, and benefits to pay for care. For example, when a  person becomes suddenly ill and is admitted to a hospital or about to be discharged to a nursing home, it’s often important for me to consult promptly with the patient and/or family, and to take prompt action to start and implement strategic asset protection strategies, and get benefits to pay for (horribly expensive) care.

This often raises the ethical question of determining exactly who is my client and who do I represent (along with issues of capacity for decisions or even delegation, and if abuse is present or possible). It virtually always  makes the most sense from a legal ethics point of view to see myself as representing the elderly or disabled patient, acting  as their lawyer, on their behalf  and in their best interests, rather than  owing my duty of loyalty directly to an adult child or other helper or family member.

In probate and estate administration cases, the very first kind of emergency dispute that sometimes comes in my direction can be over funeral arrangements. Recently, family members disagreed over how soon the funeral should occur, whether more promptly or be delayed slightly so others could attend. Luckily, gracious compromise prevailed.  I’ve learned that people do get bent out of shape and hold resentments over differences that would ordinarily pass right on by, after a loved one has died and around the time of the funeral.

People also argue over access to a decedent’s house and the contents.  In fact, often enough, people help themselves and steal what’s inside if they have access to get in.  Ann urgent alarm of this type can require my timely involvement as well.

Sometimes after someone has died an undue influence litigation arises, in retrospect, for example when proper heirs discover that actual malevolence or manipulation occurred, benefiting the wrongdoers and creating an unjust result.  Other times, a potential heir or beneficiary who learns that the decedent’s legitimate estate plan is not to their liking make unfounded allegations that must be defended against.