I remember when I was growing up there seemed to be a “code of honor” among thieves. People with bad intentions tended to avoid making the elderly, mentally ill or handicapped persons their target. Now, however, predators appear to seek out those who are vulnerable and unable to defend themselves. In particular, elderly people can be victims of intimidation, abuse and cruelty not only by strangers but by those they love and trust.
In my estate planning practice, I have had several occasions when I had to decide whether the elderly person brought to me was being taking advantage of by the person bringing him or her to the appointment. When I see “red ﬂags” that suggest that the potential client is under the inﬂuence of another and unable to make his or her own decisions, I will decline the representation.
One red ﬂag at the outset is the identity of the person making the appointment. If the person contacting me is not the potential client himself or herself, I always inquire why the potential client did not contact me directly. If I am satisﬁed with the explanation, I will schedule the appointment.
Many times the elder is driven to the office by someone who accompanies him or her to the actual meeting. I always tell the elder that he or she has the absolute right to speak to me alone. If the elder consents to have the third party present, I have the elder sign a “Waiver of Confidentiality”. Not only does this impress upon the elder the seriousness of having a third party present during our meeting, it also satisﬁes my ethical obligation to preserve the attorney-client privilege unless expressly waived by the client.
When a caregiver is the person bringing the elder to my ofﬁce and that caregiver wants to be present during my discussions with the elder, a red ﬂag goes up. When I discover that the elderly person has relatives but wants to leave some or all of their estate to the caregiver, I must determine if there is a possibility of elder abuse. Sometimes the caregiver is the person taking care of the elderly person most days for years, spending hours with them taking care of their needs. Perhaps the relatives don’t come by, spend time or don’t seem concerned about their elderly relative. If I am satisﬁed that the facts of the situation show a genuine relationship between the elder and the caregiver based on mutual affection, I might prepare the elder’s estate plan. I do caution the client and the caregiver, however, that under the law a second attorney should review the estate plan, interview the elder, and provide a Certiﬁcate of Independent Review.
Often an elderly person will bring a relative to the appointment. Estate planning presents difﬁcult choices for many people and there is no problem with a relative attending the meeting. A red ﬂag goes up, however, when the elder plans to create a plan of distribution that disinherits persons that would normally be in line for inheritance. This is especially true when an amendment to an existing estate plan is proposed that cuts out everyone except the relative bringing the elder to the meeting. I look carefully at the eye contact and body language of both the elder and the person bringing the elder to the appointment. If it appears that the elder is struggling with explaining why everything should go to this one person or that the elder is not able to understand or answer important questions, I stop the process and decline the representation.
Although I am not a medical professional, sometimes I have to make judgments concerning competency when deciding to accept a client. That is why I watch for red ﬂags and try to be very careful when I am working with the elderly. It normally comes down to a gut feeling and if the circumstances don’t pass “the smell test”, I err on the safe side by refusing to get involved. I don’t intend for any estate plan that I prepared to ever be involved in an elder abuse case.
© 2019 by Marlene S. Cooper. All rights reserved.
(Marlene S. Cooper is celebrating 40 years of practice! Her practice is focused entirely on estate planning, estate administration and probate. You may obtain further information at www. marlenecooperlaw.com, by e-mail at Marlene@MarleneCooperLaw. com, by phone at (626) 791-7530 or toll free at (866) 702-7600. The information in this article is of a general nature and not intended as legal advice. Seek the advice of an attorney before acting or relying upon any information in this article).