NAELA Journal Symposium Issue
Aspirational Standards for the Practice of Elder and Special Needs Law, Second Edition
When assisting clients with planning or the implementation of plans, elder and special needs law attorneys often represent clients who have diminished or lack of capacity. Family members and other persons with fiduciary responsibilities also may be involved. The attorney-client relationship in elder and special needs law is not always as clear-cut and unambiguous as in other areas of law. Questions relating to end-of-life planning, self-determination, exploitation, abuse, long-term care planning, best interests, substituted judgment, and, fundamentally, “Who is the client?” present issues not regularly faced by attorneys in other fields. These updated Standards are designed to assist attorneys to provide high-quality counsel, advocacy, and guidance to clients in this unique and specialized area.
The Second Edition of the Aspirational Standards includes two new sections: “Holistic Approach” and “Engagement Agreements and Drafting Documents.” The Second Edition also brings special needs law into the Standards. This edition delves more deeply into questions surrounding fiduciary representation. You’ll find more commentary and more practical examples to help you in your practice.
While each state’s professional responsibility rules mandate the minimum requirements of conduct for attorneys to maintain their licenses, the Aspirational Standards build upon and supplement those rules.
The NAELA Aspirational Standards for the Practice of Elder and Special Needs Law With Commentary, Second Edition:
- Assists attorneys to navigate the many difficult ethical issues that often arise when representing elderly individuals and individuals with special needs;
- Raises the level of professionalism in the practice of elder and special needs law; and
- Assists attorneys to effectively meet the needs of their clients.
In addition to the Aspirational Standards for the Practice of Elder and Special Needs Law With Commentaries, this symposium issue includes nine articles that focus on key areas of the Standards:
- Practical Answers to Ethical Questions Arising in Elder and Special Needs Law: A Quick Reference Guide, by Gregory S. French, CELA, CAP, Fellow
This helpful guide is designed to help you find answers to the most frequently encountered questions.
- A Comparison of the 2016 American College of Trust and Estate Counsel Commentaries With the 2017 NAELA Aspirational Standards, by Professor Mary F. Radford
A discussion of the distinctions and similarities between the ACTEC Commentaries to the Model Rules of Professional Conduct and the NAELA Aspirational Standards and concludes that estate planning attorneys and elder and special needs law attorneys could benefit from reading both documents as guidance.
- Holistic Elder and Special Needs Law Practice in the Real World, by Professor Roberta K. Flowers
A discussion on how an elder and special needs law attorney practices law holistically. This is broken down into three parts: 1) consideration of the whole person, 2) the person’s whole family support network, and 3) the person’s entire needs.
- Client Identification: Foundational and Unique to the Ethical Practice of Elder and Special Needs Law, by Robert C. Anderson, CELA, CAP, and Whitney A. Gagnon, Esq.
This article discusses ways client identification plays out in a variety of different settings including joint representation and representing clients with diminished capacity.
- Representing Fiduciaries: Guidance from the Aspirational Standards, by Renée C. Lovelace, CELA
Many of the difficulties encountered by attorneys representing fiduciaries stem from the incredible complexities of properly acting as a fiduciary. NAELA Aspirational Standards A, B, and C can guide the attorney in working with fiduciaries.
- Till Death Do Us Part: Using NAELA Aspirational Standard D to Address Conflicts of Interest in Estate Planning for Married Couples, by Connie L. Bauswell, CELA
A discussion of the requirements of the ABA Model Rule of Professional Conduct 1.7 and also NAELA Aspirational Standard Section D to assist in understanding how conflicts arise, when they can be waived, and when the conflict is not consentable and representation needs to be declined.
- NAELA Aspirational Standard E-Confidentiality, by A. Frank Johns, LLM, CELA, CAP, Fellow
A review of the applicable NAELA Aspirational Standards and also the ABA Model Rule 1.6 of the Rules of Professional Conduct.
- Understanding and Responding to Client Capacity: An Examination of Revised NAELA Aspirational Standard G, by Professor Gregory T. Holtz
Client capacity is a problem elder and special needs law attorneys face frequently in their law practice. Topics such as confidentiality, conflict, and guardianship are addressed in the Aspirational Standards to assist the practitioner in dealing with thorny capacity problems.
- The Inclusion of Special Needs as a Core Element of NAELA’s Aspirational Standards, Second Edition, by Stuart D. Zimring, Esq., CAP, Fellow
A discussion on the distinctive dilemmas facing attorneys working with people with special needs. A discussion of the suggestions in the Aspirational Standards on the subject of client identification and duties to the beneficiaries of the representation, as well as the need to make accommodations for people with special needs and/or diminished capacity.
Professor Roberta K. Flowers
2018-2019 NAELA Professionalism and Ethics Committee Chair