A. The Holistic Approach

The elder and special needs law attorney:

1. 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.

The elder law and special needs law practice is unique.  It often involves individuals with a physical or mental health condition requiring special care, attention and protection because the client may have a memory, mobility or other disabling impairment, chronic condition or other illness. While elder and special needs law include traditional estate planning, many times the focus of an elder law or special needs representation is the "life needs" of the person whose interests are being promoted in the legal representation. The principal life needs may include the following present or future needs:

  • Access to high-quality health care
  • Access to high-quality long-term care services and supports in the least restrictive housing setting that is safe for the client
  • Advocacy to promote independence and autonomy
  • Advocacy for accessibility to accommodate special needs
  • Advocacy in promoting freedom from discrimination due to age or special needs
  • Access to education and training for those with special needs
  • Access to public benefits
  • Access to insurance solutions for health and long-term care
  • Planning to promote family harmony and minimize conflicts
  • Protection from exploitation, abuse and neglect
  • Planning for end-of-life care and life support decision-making
  • Tax planning

An attorney is engaged to prepare powers of attorney and an estate plan for a home-bound client who has suffered a significant decline in vision and lost the ability to walk. In addition to preparing the legal documents requested by the client, the attorney should offer advice on the issues of how to arrange for home care services, assisted living or nursing home and pay for such services and living arrangements, and what measures the client may wish to consider to prevent financial exploitation
2. May consider using non-legal services to accomplish the goals of the representation where appropriate and the client consents.

Since the holistic approach may go beyond traditional legal services, the guidance of non-legal professionals may be useful in accomplishing the holistic approach. Examples of non-legal services (other common names for non-legal services are "ancillary services" or "law-related services," (as described in ABA Model Rule of Professional Conduct 5.7: Responsibilities Regarding Law-Related Services2) include advocacy by a healthcare professional, capacity screening by a psychologist or neurologist, residential placement by a social worker, medication management by a nurse, tax preparation and asset organization by an accounting professional, investment advice by a financial planner, and real property appraisal services by a licensed appraiser.

A lawyer, consistent with the state ethics rules, may provide non-legal services through (a) an employee of the attorney’s law firm; (b) an independent contractor; (c) a separate entity not affiliated with the lawyer; or (d) a separate entity owned by the lawyer or law firm.  Regardless of how the attorney provides these non-legal services, the attorney should exercise caution to comply with the attorney’s duties of confidentiality, loyalty, independent judgment, and state bar rules of professional responsibility (see Standard J. Non-Legal Services)

3. Encourages the use of family members and other third parties to support the client in the legal representation when appropriate and the client consents.

In the elder law and special needs law practice, the assistance of non-client family members and other third parties is often appropriate and useful, especially when the capacity of the person being served in the legal representation is diminished. The attorney needs to confirm that (a) non-clients who are involved in the legal representation understand who the attorney's client is and are not unduly influencing the client and (b) the client has authorized the involvement of the non-client in the process, preferably in writing. (See Standard #3 Section B Client Identification, and Section E Confidentiality Standard #6 Section G Client Capacity).
4. Explains to the client seeking estate planning services how conflicts among family members may develop and, if desired by the client, recommends harmony-enhancing measures consistent with the client’s estate planning goals to minimize these conflicts.

Family harmony is often an important goal for clients in implementing an estate plan, and should not be neglected in the estate planning process. The attorney should assess the importance of family harmony to the client, dynamics of the client's family and the risk of disharmony when the client will experience a decline in capacity and later death.

Subsequent family conflicts may frustrate the client's estate planning goals, significantly increase legal fees and other costs of administering an estate or trust, and, if the conflicts occur during the client’s lifetime, will cause the client unnecessary stress. For example, an attorney should point out to the client the risk of disharmony in the client's selection of healthcare and financial fiduciaries. The attorney should suggest proactive planning measures to minimize the risk of disharmony, such as incorporating conflict resolution provisions in advance directives, wills, trusts which are consistent with other important client goals. Additionally, the attorney should document the client’s specific goal of family harmony.

5. When conflict between family members or other interested parties arise, evaluates if non-judicial conflict resolution is appropriate and encourages non-court resolution when appropriate.

Conflicts among a client's family members or other interested parties may occur even if preventative measures are taken.  For example, a client may have more than one family member or other trusted person to choose from when selecting a healthcare or financial fiduciary. The client's selection of one person as a fiduciary may create resentment among the other persons not selected. This resentment may later fuel or create conflicts, and can potentially lead to a probate guardianship proceeding to remove the appointed fiduciary, or, after the client's death, to a court challenge by the client's family members out-of-power to the client's appointed trustee or executor.  In order to help preserve the client's stated goal of family harmony, the attorney may recommend that the disputing parties resolve their conflicts by non-court mediation or other collaborative settlement process, if available and practical (see the ABA Standing Committee on Ethics and Professional Responsibility in Formal Opinion 07-447, Ethical Considerations in Collaborative Law Practice).

In recommending conflict resolution solutions, the attorney should be careful not to violate ethical obligations to the client, or former client if he or she has died, such as whether the proposed action would create a conflict of interest, whether the attorney has authorization from the client to take the proposed action and whether such an action would result in a disclosure of the client's confidential information.  When recommending non-court mediation or collaborative settlement, it is helpful to have the client's instructions permitting the attorney to make such recommendations to non-clients (See Standard #3 Section D Conflicts of Interest)

6. Takes actions to help prevent current or future financial exploitation, abuse or neglect of the client.

The elder law and special needs law attorney is often confronted with issues of financial exploitation, physical and emotional abuse and neglect when the person whose interests are served in the legal representation has diminished capacity or has a disability. Attorneys should make an effort to be educated and trained in detecting and preventing exploitation, abuse and neglect. Attorneys should recommend to the client the use of planning measures into the representation that will minimize the risk of exploitation, abuse and neglect, including the education of the client and family members on the risks.  Attorneys might consider encouraging clients to: (a) sign a written pre-consent form authorizing the attorney to take protective action if the attorney discovers exploitation, abuse or neglect; (b) encourage the client to place the client’s assets into a living trust; (c) give a trustworthy family member access to the client’s bank account in order for such trusted party to be able to act as a protector by checking on expenditures (see sample authorized disclosure form below) (also see Standard #4–#7 Section G Client Capacity) which discusses the obligations of an attorney to take protective action when a client has diminished capacity.)

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