The Inclusion of Special Needs as a Core Element of NAELA’s Aspirational Standards, Second Edition

Published February 2019

I. Introduction
Special needs planning is a core element of NAELA’s mission. As stated at the beginning of the NAELA Mission Statement:

The mission of the National Academy of Elder Law Attorneys is to educate, inspire, serve, and provide community to attorneys with practices in elder and special needs law.1

On November 21, 2005, when the first edition of the NAELA Aspirational Standards was adopted, special needs planning was just beginning to be recognized as a distinct practice area, an area focused not just on the elderly but also on those of any age who find themselves in need of the unique skill set that NAELA members bring to each and every representation. The first edition of the Standards was subject to extensive analysis and discussion in an issue of the NAELA Journal the following year.2 In the Foreword to that issue, I wrote that the Aspirational Standards had been “crafted to enable NAELA’s members to become ‘the premier providers of legal advocacy, guidance, and services’ so that we can ‘enhance the lives of people with special needs and people as they age.’”3 This principle has not changed in the second edition of the Aspirational Standards, which now states that the elder and special needs law attorney:

In applying a holistic approach to legal problems, works to consider the larger context, both other legal consequences as well as the extra-legal context in which the problems exist and must be solved.4

The second edition of the NAELA Aspirational Standards has been expanded to embrace the concept that clients of any age may have special needs — needs that frequently require the expertise of NAELA members to be fulfilled. This article will examine how the Aspirational Standards address the core values of NAELA’s commitment to helping those with special needs.5

II. Special Needs Planning Is Not Limited to Planning — It Is a Holistic Consideration of Your Clients and Their Needs
The updated Aspirational Standards acknowledge the additional challenges the elder and special needs law attorney faces in assisting persons with special needs. Aspirational Standard G (Client Capacity), Section 3, states that the elder and special needs law attorney:

Adapts the interview environment, timing of meetings, communications, and decision-making process to maximize the client’s ability to understand and participate in light of the client’s capacity and circumstances.

This passage acknowledges that one aspect of helping clients with special needs has nothing to do with the law but rather with confronting the clients’ physical, emotional, medical, or psychological challenges. In these cases, NAELA’s Aspirational Standards embrace a holistic philosophy of planning as the lawyer is called upon to develop strategies and skill sets, many of which are not common in the practice of law, to address the client’s legal needs. Aspirational Standard G, Section 3, Comment, expands on this concept:

Elder and special needs law attorneys should develop strategies and skills to understand and communicate with their clients by using different interview techniques and strategies. The attorney should be proactive and creative, using strategies and techniques that suit the client’s current physical, emotional, and mental abilities. Following is a nonexhaustive list of interviewing techniques and strategies:

• Changing the time and location of the meetings;

• Conducting the interview in the client’s home or at a time of day the client is most alert;

• Conducting gradual counseling (conducting a series of shorter interviews over a period of time);

• Varying communication styles;

• Using appropriate visual aids and hearing enhancements;

• Conducting the interview in the client’s primary language or with an interpreter of that language; and

• Providing other reasonable accommodations requested by the client.

One word that sums up this aspect of what it means to be a special needs law attorney is “flexibility.” Special needs law attorneys understand that to effectively perform their jobs, they cannot remain in the cozy confines of their offices — they must make house calls. They must put themselves in their clients’ shoes, walkers, or wheelchairs and examine whether their offices are user-friendly to all of their clients. Can the client easily get himself or herself up out of the soft, plush waiting room couch without assistance? Does that beautiful view of the mountains outside the attorney’s conference room create a vision problem because of the angle of the afternoon sun? Can service animals be accommodated easily? If special needs law attorneys are truly going to practice holistically, they need to be attuned to these issues because each and every one of them should be addressed before the client ever comes through the door. It is only then that the legal special needs of the client can be addressed.6

III. There Is No Difference Between the Attorney’s Approach to Elder Law and Special Needs Law
In the author’s opinion, the practice of elder law and the practice of special needs law are the same. Over the years, since the initial version of the Aspirational Standards was adopted, each specialty has developed a different way of focusing on a similar set of issues and challenges. While the client base for elder law and special needs law consists of seniors and those with special needs, respectively, the manner in which elder law and special needs law attorneys apply their skills to a given client is the same.

The tools in the tool kit that elder law and special needs law attorneys would use for a 98-year-old who has physical infirmities but total mental capacity may be different from the ones they would use for a 21-year-old who has been rendered a quadriplegic in an accident; however, the approach to solving each client’s issues would be the same. Similarly, if the 98-year-old shows early symptoms of dementia, the choice of tools will change and may continue to change over the course of the representation, but the attorney’s approach to both elderly persons and persons with special needs is knowing what tools are available and selecting the right ones for the job.

The Aspirational Standards are important throughout the practice of the elder law and special needs law attorney. Consider the following example of how the Standards directly affect the special needs law attorney’s practice.

Fred and Wilma Flintstone are in their 80s. They have two children, Pebbles and Bam Bam. Pebbles is 18 years old, is nonverbal, and has severe autism. Bam Bam is a 24-year-old senior executive at Google. When the Flintstones first meet with you, they are generally in good health except that Wilma has vision problems and Fred is hard of hearing. They ask you to prepare a complete estate plan consisting of a revocable inter vivos trust, durable powers of attorney for asset management, advance health care directives/powers of attorney for health care, and pour-over wills for themselves and a special needs trust for Pebbles. The couple receives Social Security and has IRAs, and Fred receives a pension from Bedrock Gravel & Sand.

At the initial meeting, you gather all the necessary information, satisfy yourself as to their capacity to engage you, discuss the economics of the representation, ascertain that there are no potential or real conflicts of interest that would prohibit you from representing them, and believe you have the necessary skills and experience to adequately represent them.

During this first encounter, which may have lasted not more than an hour or two, the principles and guidelines set forth in Aspirational Standards B (Client Identification), C (Engagement Agreements and Document Drafting), D (Conflicts of Interest), E (Confidentiality), and G (Client Capacity) have all been in play — in addition to the applicable American Bar Association (ABA) Model Rules of Professional Conduct. And it is only the first meeting!

The question to be answered: “Is this initial encounter elder law or special needs law?” The answer appears to be “both.” Creating the primary documents for Fred and Wilma is estate planning with elder law concerns. The next concern is “How do we deal with Fred and Wilma’s special needs?” Wilma’s vision issue may necessitate printing her documents in an exceptionally large font and making sure she has access to a magnifying glass. Plus, you should check her ability to navigate the office and remove any physical obstacles that may impede her. Fred’s hearing issue means sitting closer to him and making sure the meeting takes place in a quiet environment (e.g., by turning off the heating or air conditioning system if necessary). This attention to detail is the real thrust of Aspirational Standard G, Section 3, as noted in Aspirational Standard H (Communication and Advocacy), Section 1, which states that the elder and special needs law attorney:

Works to minimize barriers to effective communication with clients.

Comment
Elder and special needs law attorneys must facilitate effective communication with their clients. The issues affecting elderly individuals and individuals with special needs span a broad range of legal, social, and personal matters. While most clients do not have serious functional limitations, some clients do experience physical, sensory, and cognitive impairments that may result in barriers to effective communication. Barriers to effective communication include cognitive barriers, physical barriers, situational stress, complex family and financial issues, dependence on others, and concern about legal fees.

Removing barriers to effective communication is essential to the practice of the elder and special needs law attorney. Enhancing communication requires knowledge, skill, and persistence on the part of the attorney. The attorney should be mindful of the requirements of the Americans With Disabilities Act and comply with these requirements to maximize communication with clients who need or request accommodations.7

Pebbles’ planning needs, which concern special needs law, will certainly be the focus of a significant part of the conversation. The obvious recommendation for Fred and Wilma is to incorporate a third-party special needs trust and possibly an Achieving a Better Life Experience (ABLE) account into their plan. You explain why you consider these appropriate. You should then determine whether Pebbles has assets in her own name. If so, she may need a first-party special needs trust or pooled special needs trust.8 Will you be able to do this planning if you only represent the parents? Should there be a separate representation or a referral? Pebbles is severely autistic and nonverbal, but you have not met her and you have not been told whether there is a guardianship in place for her. It is important to ask because the special needs trust trustee does not have authority to make personal care decisions on Pebbles’ behalf; therefore, a guardianship or conservatorship may be necessary to ensure that someone has legal authority to make these decisions for her.

In a month, the initial drafts of the documents are sent to Fred and Wilma. Wilma calls you informing you that since your meeting, Fred had a stroke. He is now paralyzed on the right side and has lost his ability to speak. She informs you that, despite Fred’s conditions, he appears to have full mental capacity. They want to meet with you to discuss how this new reality affects their planning. Fred is able to travel, and they will meet you in your office. At that next meeting, a new set of issues are presented. Wilma states that Fred still has “full mental capacity.” You likely have an obligation to confirm this to your own satisfaction.9 ABA Model Rule 1.14 states that in cases of diminished capacity, “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”10 Assuming Fred has not lost any of his mental capacity, his ability to communicate with you (and quite possibly, your ability to communicate with him) may be affected. Fred’s issue is physical; therefore, the guidance provided in Aspirational Standards G and H, applying Standard A (Holistic Approach), to the practice, becomes invaluable. Plus, there may be conflict of interest issues, which are addressed elsewhere in the Aspirational Standards, between Fred and Wilma.

Consider a different scenario: Fred and Wilma have been your clients for some time. You prepared their estate plan for them when their first child, Bam Bam, was born. After the birth of their daughter, Pebbles, they contact you for advice. Pebbles, now 13, has been diagnosed with severe autism. She receives public benefits, and they want to make sure nothing will interfere with her continued access to those benefits in the years to come. They want to discuss with you what needs to be done to modify their existing documents (someone at one of their support groups mentioned something called a “special needs trust”).

Also, Wilma’s parents mentioned sometime back that they were leaving significant gifts to all their grandchildren and wanted to know whether this would have any impact on Pebbles’ public benefits when she inherits the assets.

At this stage of the representation, special needs planning is clearly at the forefront of your analysis and focus, and Aspirational Standard F (Competent and Diligent Representation) and Model Rule 1.1 become your guideposts in your continuing representation of Fred and Wilma. If Wilma’s parents contacted you about what they should do and whether you could represent them in modifying their estate plan to coincide with your planning for Fred and Wilma, Aspirational Standard D, Section 2, and Aspirational Standard E would govern your ability to represent the parents concurrently with Fred and Wilma11 and govern the extent to which you can share information between these clients.12

One last scenario: Phyllis Fenderbender, a well-known personal injury attorney, contacts you regarding her client, Patty Pedestrian. Patty is 21 years old. She was rendered a quadriplegic when a drunk driver hit her as she tried to cross the street. At the time of the accident, she was an aspiring ballerina and had been offered a full scholarship to Julliard. She has mental capacity. The settlement in the lawsuit will be the maximum recoverable under the driver’s policy, approximately $500,000 net to Patty.

Ms. Fenderbender wants you to draft a special needs trust for Patty and “do all that stuff you do to get her on SSI [Supplemental Security Income] and Medi­caid.” She says that she has full authority to speak on Patty’s behalf and you do not need to meet with her or her parents, who have become her full-time caregivers. Finally, Ms. Fenderbender tells you she will be paying your bill, “so don’t bother to send anything to Patty or her parents.”

There is no question that this is a special needs law case. Everything you have been asked to do here focuses on special needs law: creating an appropriate special needs trust and assisting Patty in applying for appropriate public benefits.

But before you ever put pen to paper (or fingers to keyboard), the guidance provided by the Aspirational Standards, especially in the area of special needs law in which multiple parties are clamoring for the lawyer’s attention, require you to stop, take a deep breath, and ask yourself a first critical question: “Who is my client?” Aspirational Standard B, Sections 1–3, provide us with guidance:

The elder and special needs law attorney:

1. Identifies the client and the individuals who will assist the client at the earliest stage of the representation, obtains the client’s agreement on these identifications, and communicates this information to the persons involved.

2. Recognizes the unique challenges of identifying the client when a fiduciary is acting on behalf of a protected individual.

3. Meets with the prospective client in private at the earliest practicable time to help the attorney identify the client and assess the prospective client’s capacity and wishes as well as the presence of any undue influence.

Aspirational Standard B, Section 1, Comment, spells out the task facing you at this stage:

It is the client to whom the attorney owes the professional duties of competence, communication, diligence, loyalty, and confidentiality. In order to determine to whom the attorney owes these duties, the first step is to answer the question “Who is the client?”

In elder and special needs law, identifying the client is challenging because the individual whose personal and property interests are to be protected in the proposed representation may not be present or may be accompanied by family members, appointed fiduciaries, or other trusted third parties. Usually, the client is the individual whose personal and property interests are to be protected. Alternatively, a family member, fiduciary, or other person seeking to protect or assist another person can be the client.

In a traditional attorney-client relationship, a prospective client who has capacity engages the attorney after an initial private consultation, thus making client identification straightforward.

This Standard provides guidance on the foundational issue of client identification. In following this guidance, different attorneys with the same set of facts may identify different individuals as the client, and each result is equally appropriate. One thing is certain: Regardless of who the client is, the attorney should be vigilant in protecting the individual.

Throughout these Standards, the term “protected individual” refers to the individual whose personal and property interests are the subject of the representation.

The attorney should establish methods for when and how to determine the identity of the client. Intake forms can help determine the identity of the client. The form may ask “Who is seeking legal advice and services?” or “For whom or for whose interests are legal services requested?” When several people are present at the initial client meeting, the attorney may ask “Who is my client?” When more than one person at the meeting believes the attorney to be representing him or her, the attorney should take additional steps to clarify the identity of the client. The identity of the client should be resolved at the earliest stage so that the client, the attorney, and other involved persons understand:

• Whose interests are to be protected in the legal planning and representation process;

• To whom the attorney owes the professional duties of competence, communication, diligence, loyalty, and confidentiality;

• The steps that may or may not be taken after the initial consultation if the client or protected individual is not present at that meeting; and

• That the attorney will arrange at the earliest practicable time to communicate privately with the person who is expected to be the client.

The attorney should ensure that all involved persons understand which individual is the client and that the others are not clients. The attorney also should determine whether the client authorizes the attorney to communicate with another person, such as a fiduciary or family member, and obtain the client’s written consent to such authorized involvement.

Using the guidelines provided in Aspirational Standard B, Section 1, it seems clear that Ms. Fenderbender, while well-intentioned, is not going to be your client — Patty will be. Thus, you must meet with Patty alone and establish an attorney-client relationship with her if you are going to represent her. If Patty’s parents or Ms. Fenderbender insist on being part of the process, Aspirational Standard E, Sections 1 and 4, give you the guidance necessary to effectively represent Patty and yet involve the others at whatever level she directs. Aspirational Standard E, Sections 1 and 4, provide that the elder and special needs law attorney:

1. Carefully explains to the client and others involved, as early in the representation as possible, the attorney’s duty of confidentiality to the client in order to avoid misunderstandings and to ascertain and respect the client’s wishes regarding the disclosure of confidential information.

4. Strictly preserves client confidences, especially in situations that involve frequent contacts with family members, caregivers, or other trusted third parties who are not clients.

The hypothetical highlights a common thread in dealing with clients who need the expertise of a special needs law attorney — frequently, if not always, additional people are in the room. For better or worse, these nonclients believe they are entitled by virtue of their relationship with the client to either be privy to attorney-client privileged information or have a say in the decision-making process or both. One of the great strengths of the Aspirational Standards is that they give the attorney clear guideposts in an otherwise murky environment. In this case, the question is to answer the question “Who is the client?” Once that is answered, the next question is “With whom can information be shared?” Assistance in answering these questions appears in Aspirational Standard B, Section 1, and its Comment, as presented previously. The attorney is no longer alone in trying to answer these questions.

The Aspirational Standards do more than provide guidance, they also provide a road map to answering these questions. Aspirational Standard E, Section 5, states that the elder and special needs law attorney:

Ascertains the wishes of the client as to whom, if anyone, the attorney may disclose confidential information and explains the potential consequences of such disclosure.

Comment
When the client requests disclosure, the attorney should be mindful of the consequences and ensure that the client understands the possible risks and implications of such disclosure (see “Ethical Issues in Representing Seniors, Persons With Disabilities and Their Families,” Appendix A, by Stuart D. Zimring13). The attorney should explain to the client the options regarding the type of information to be disclosed, the method of disclosure, and to whom the information will be disclosed. The attorney should also explain that the nonclient’s presence may waive the attorney-client privilege (see “To Speak or Not to Speak: Effect of Third Party Presence on Attorney Client Privilege,” by Roberta K. Flowers, Esq.14) unless such individual’s presence is necessary to assist in the representation (see U.S. v. Kovel, 296 F.2d 918, 922 (1961)). The same steps should be taken if the attorney or others ask the client to approve disclosure. A client who decides to waive confidentiality and direct the release of confidential information should do so with a written waiver specifying the scope of information to be disclosed and to whom. (See Standard B, Client Identification, Section 1.)

The NAELA Aspirational Standards not only provide guidance regarding specific issues but also direct linkages, showing the common thread between Standards (e.g., the reference in Aspirational Standard E, Section 5, Comment, back to the issue of client identification in Aspirational Standard B, Section 1). It is beyond the scope of this article to discuss to what extent Patty’s parents and Ms. Fenderbender may be involved and how that would be documented. Guidance in this regard, along with citations, examples, and references to forms are available in the “Aspirational Standards for the Practice of Elder and Special Needs Law With Commentaries” at the beginning of this issue of NAELA Journal or online at https://www.naela.org/Web/Members_Tab/Aspirational_Standards/Aspirational_Standards_Member_Page.aspx.

IV. Conclusion
The practice of elder and special needs law is immensely rewarding. At the same time, it is challenging. Sometimes it is heartbreaking, but most of the time it is gratifying beyond measure. Our wonderful mentor and guide, Clifton Kruse, past NAELA president and member of the Professionalism and Ethics Committee when the Committee drafted the first edition of the Standards, said it best: In doing what we do, and doing it well, we earn the accolade — professional — one who serves others. That is our privileged role as lawyers; we can make others’ lives, if even for a few moments, better than they were before.