SeminarRevEthicsEinhart
Seminar Review: Ethics in a Pandemic: The Good, the Bad, and the Ugly of Representation Virtually
By Eric J. Einhart, Esq.
This Kruse lecture was presented by a very knowledgeable panel comprised of Mary Alice Jackson, Esq., Fellow; Jennifer L. VanderVeen, CELA, CAP, Fellow; Stuart. D. Zimring, Esq., CAP, Fellow; and A. Frank Johns, CELA, Fellow. Not only did the panelists provide an excellent presentation on the advantages and disadvantages of representing older clients and special needs clients virtually during the COVID-19 pandemic, they also answered questions and provided feedback and helpful tips to the attendees in real-time during the presentation. However, most impressive of all was that the panelists made an ethics lecture fun and interactive.
The presenters began the session with some classic old Western-style theme music to set the tone and then appeared on screen with themed nicknames: Mary Alice Jackson (“The Good”), Jennifer L. VanderVeen (“The Bad”), Stuart D. Zimring (“The Ugly”), and A. Frank Johns (“The BEST”).
After the introductions, the panel then discussed the benefits of representing clients virtually during the COVID-19 pandemic — The Good. These benefits include an increase in clients recognizing the need to prepare long-term care and estate planning documents, such as wills, trusts, and health care directives. Another significant benefit the panelists noted was that virtual communication allows us to reach more clients, and in many cases, we can satisfy our clients’ needs more efficiently through virtual communication and document executions.
Some other benefits of representing clients virtually that were discussed were the opportunity attorneys may have in helping older clients become familiar and comfortable with virtual communication and humanizing the client interaction and learning helpful information during a virtual conference.
When it came time to The Bad aspects of representing clients virtually, the panel focused on issues of communication and confidentiality and provided several factors to consider when using technology to communicate with clients. The panel also reviewed Model Rules of Professional Conduct (MR 1.6: Confidentiality) and stressed the importance of knowing who is in the room when the client is communicating virtually, having the appropriate encryption, and avoiding inadvertent disclosure. The panel also recommended putting in place an office policy regarding the protection of client information and reminded the attendees of the attorney’s responsibility to supervise subordinate lawyers and staff properly (MR 5.1 to 5.3).
Additionally, the panelists had some helpful tips regarding confidentiality, such as discussing confidentiality with clients upfront, maintaining agreements regarding confidentiality as part of your practice, and paying attention to which documents are confidential.
Next came The Ugly — Assessing Capacity. The panelists acknowledged how challenging the assessment of a client’s capacity could be even under pre-COVID “normal” circumstances and advised attendees to be careful and take the proper precautions when determining capacity virtually.
The panelists provided some background on the various levels of capacity as well as the process and different modes of determining capacity. The panelists also discussed Model Rules of Professional Conduct (MRL 1.14) regarding capacity and stressed the importance for attorneys to regularly review these rules as well as the relevant NAELA Aspirational Standards (NAELA Aspirational Standard G-3) and look to them as a reference when dealing with issues regarding capacity.
Although the presentation was taped before the Annual Conference, the panelists did a great job of interacting with one another and gave the audience the impression that they were listening to lively discourse and playful banter between the panelists in real-time. All in all, this breakout session was way better than Good, certainly not Bad, and definitely not Ugly.
About the Author
Eric J. Einhart, Esq., is NAELA News Editor in Chief and a member of the NAELA Board of Directors.
Seminar Review: Paying for Long-Term Care Without Public Benefits
By Len Mondschein, CELA, CAP
Guy Matthews, Esq., who practices in Media, Pennsylvania, presented a detailed analysis of how elder law and special needs planning attorneys should assist their clients in planning for long-term care. Rather than starting the conversation with a client about government benefits, Mr. Matthews discussed other options that may provide the client with more independence and greater choices for his or her long-term care needs. The major areas addressed in his presentation were long-term care insurance, Social Security, reverse mortgages, life settlement options, and annuities.
While some of Mr. Matthews’ presentation concentrated on pre-crisis planning, his solutions were based on decisions that must be made years in advance. For example, in his discussion of Social Security, he explained that by the client waiting to collect his or her retirement benefit until age 70, rather than age 66, the client would receive an additional 8 percent per year which comes out to be 132 percent rather than 100 percent. This higher monthly benefit will continue for the rest of the client’s life, regardless of how long he or she lives. Another decision that must be made at the earliest possible time is whether to purchase long-term care insurance. He pointed out that this product is confusing at best and should only be purchased after a “cost-benefit” analysis is done to determine if it makes financial sense. This is especially true with this product since historically the premiums have gone up drastically, even though the client thought that the premiums were locked in.
A few of the speaker’s options could be exercised on a crisis basis, such as reverse mortgages and life settlements. For example, if a client becomes chronically ill and needs assistance at home, a reverse mortgage can allow the client to remain at home with the services needed to keep him or her in the residence without “out-of-pocket” costs. With life settlements, a life insurance policy that is no longer needed, may be sold to a company that will pay the premiums and give needed cash to a client to help fund his or her care at home. If the transaction is a viatical settlement (terminally ill with life expectancy of only two years to live), those funds will be received tax-free.
The main takeaway from Mr. Mathews’ program is to consider other options, both in crisis and pre-crisis cases, other than public benefits. This is especially true in cases where the client wants to remain in his or her home, and the home and community-based services in his or her state are very small so that public benefits will force the client into a nursing home.
About the Author
Len Mondschein, CELA, CAP, is a member of the NAELA News Editorial Board and a member of the NAELA Board of Directors.
A Letter of Intent, A Deep Dive
By April D. Hill, CELA, CAP
This timely program presented by, Kelly Piacente and Jerry Hurlick, discussed the Letter of Intent, an informative document, part of a life are plan, written by family and caregivers of those with special needs. Caregivers often have developed very detailed and specific ways of caring for their individuals yet without a Letter of Intent, others may have no idea of those means. The speakers used an example of a mom who took her nonverbal child with autism to the park for walks to calm them when their anxiety began escalating. Other family members offered to do the same thing however were unsuccessful in obtaining results. Mom told them that they needed to enter the park through a certain entrance and walk in a specific direction. With that little bit of information others were able to step in and make a difference.
The speakers explained that initially a caregiver may think creating a Letter of Intent is too difficult or overwhelming. Alone, many are not be able to compile the information needed for the Letter of Intent. Different advisors connected with the speakers’ company have developed expertise in this area. Some charge a fee for the service while others incorporate it into their planning fees. Certain other advising groups and care planning services also this service. The help and sources come from many different places. Templates and forms are even available for free online. Once the initial Letter of Intent is in place, the caregiver is usually able to add to and update regularly and without additional help.
The great benefit of using a Letter of Intent is, of course, to assure the disabled individual move through life with the least amount of disruption should the caregiver become ill or die. Its purpose is to equip those who come behind the caregiver. Information that should be included in a Letter of Intent include daily routines, specific needs, medications and how they are given, dietary wishes, medical providers to use and those to avoid, personal wishes, religious preferences. Clearly the list could include anything.
Like ethical wills, Letters of Intent are for sharing pertinent but non legal information. They are living, fluid documents that should be a part of the estate plan of any parent or caregiver. Though it was not discussed in the presentation, I could not help but consider the Letter of Intent as a tool for dementia patients’ caregivers.
About the Author
April D. Hill, CELA, CAP, is a member of the NAELA News Editorial Board.