Aspirational Standards for the Practice of Elder Law and Special Needs Law with Commentaries

Preamble

The National Academy of Elder Law Attorneys (NAELA) was founded in 1987 to support attorneys in meeting the complex legal needs of elderly individuals and individuals with disabilities. These Aspirational Standards for the Practice of Elder Law and Special Needs Law are core to NAELA’s mission. NAELA requires all members to support these Standards. This condition of membership distinguishes NAELA from all other legal associations.

Given the dynamic and evolving nature of elder law and special needs law, attorneys should and often must represent their clients “holistically,” adapting and applying information and insight obtained from a wide range of legal and social disciplines.  When assisting clients with planning or the implementation of plans, elder law and special needs law attorneys often will represent clients who have diminished or lack of capacity.  Family members and other persons with fiduciary responsibilities also may be involved.  The client-attorney relationship in elder law 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 Standards are designed to assist attorneys to provide high quality counsel, advocacy, and guidance to clients in this unique and specialized area.   These Aspirational Standards:

• Assist attorneys to navigate the many difficult ethical issues that often arise when representing elderly individuals and individuals with disabilities;
• Raise the level of professionalism in the practice of elder law and special needs law; and
• Assist attorneys to effectively meet the needs of their clients. 

This second edition of the Aspirational Standards is the product of three years of study and deliberation by NAELA’s Professionalism and Ethics Committee.  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

These Standards do not define or establish a legal or community standard nor are they intended to be used to support a cause of action, create a presumption of a breach of a legal duty, or form a basis for civil liability.  Those matters are governed by the statutes and rules of professional responsibility of the state in which the attorney practices.

Following these Aspirational Standards helps attorneys to make the lives of clients better. As Clifton Kruse, Past NAELA President and member of the Professionalism and Ethics Committee at the time the Committee drafted the first edition of the Standards, so aptly said:

…clients are hesitant to share without invitation. There is a threshold that we must assure them that we want them to cross. And we do this with questions. And we do it as lawyers. We are the elders’ lifeline…. Our licenses make this possible. They give us status and credibility, and after meeting us- hopefully, trust. The legal answers are comparatively easy- the job we are called in to do is done- but along the way, the more important, the more valuable service occurs as well. We listen. We invite a monologue. We establish this by our demeanor and by our questions that invite unloading- and in the process we extend the joy that elders’ memories bring. And on those days, 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.

read more about Clifton Kruse