H. Communication and Advocacy

The elder and special needs law attorney:

1. Works to minimize barriers to effective communication with clients. 

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 law 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 its requirements to maximize communication with clients who need or request accommodations.


Example 1:  Because the client has visual impairments, the attorney ensure that all documents are readable by the client. The attorney accomplishes this by using large fonts in the documents, having a magnifying glass available, and using task lighting or glare-free lighting.

Example 2: Because the client has an auditory disability, the attorney uses devices that incorporate hearing-assistive technology, many devices are inexpensive.  Also, the attorney arranges seating so that the attorney is closer to the client.

Example 3:  In explaining options to the client, the attorney avoids using legalese and terms of art and instead uses plain language and real-life examples to which the client is able to relate.


2. Maintains direct communication with the client, whether in person by telephone or through correspondence, even when the client chooses to involve others (including an agent under a durable power of attorney).

Maintaining direct communication with the client is a critical component of effective representation, particularly when the client is making major life decisions that may alter the client’s options for long term services and supports. Direct communication may be difficult when the client has a physical or mental impairment. The attorney may also face challenges when the client has others involved. Often the client will direct the attorney to communicate with a third party, either in a formal agency relationship, or informally through a family member. Even though the client may have authorized the attorney to communicate directly with the third party, the attorney still should include the client in communications. In addition, the attorney still must maintain the duties of loyalty and confidentiality to the client. Subject to exceptions for persons necessary to communication with the client, such as a translator or an attorney-in-fact, client-attorney privilege may not protect communications made in the presence of non-client third parties (See Standard E. Confidentiality, Section 5).

Example: The client signs an authorization allowing the attorney to communicate directly with her son about the client’s legal matter.  Even though the attorney may communicate primarily with the son, the attorney still should keep the client informed, where practical and appropriate, through means such as providing the client with copies of correspondence or documents. At the client’s direction, the attorney may retain confidential documents or send them to a third party if the client is unable to secure the documents.

3. In order to obtain informed consent, advises clients of their options, explaining the possible consequences of each option.

The attorney has an ethical obligation to keep clients informed and to explain matters in a manner that enables clients to make informed decisions. A number of factors, including the complexity of the matter, clients’ ability to understand, and the expected impact of the information on clients, should govern how the attorney provides information to clients. 

In describing possible courses of action and options to clients, the attorney should explain the consequences plainly and succinctly, outlining the advantages and disadvantages of each option. When explaining possible outcomes, the attorney should provide as much relevant information as possible in order for the client to make an informed choice.

However, in certain limited circumstances, the attorney may not be required to fully inform the client if doing so would harm the client or cause the client to react inappropriately (See Model Rule 1.14: Client With Diminished Capacity, Comment).

All attorneys advise clients about their options, and each client brings a different set of circumstances and challenges.  Elder law and special needs law attorneys may, however, encounter especially complex combinations of factors.  Elder law and special needs cases may include a complex array of legal, social, medical, and personal dilemmas.  Clients may be unfamiliar with the choices they face and, further, may be in crisis.  Clients may need guidance and assistance to identify problems as well as options, both with the non-legal and the legal aspects of their cases.  Attorneys should strive to assist clients facing complex problems during emotional and/or medical crises by identifying and prioritizing the problems as well as by developing and comparing the relevant options. 

Example:  At the attorney’s request, the client undergoes a capacity assessment from a geriatric psychiatrist to determine whether the client has testamentary capacity.  The psychiatrist sends the assessment to the attorney.  In the assessment, the psychiatrist states that the client lacks contractual capacity but has testamentary capacity.  She further states that because the client suffers from severe depression the negative assessment regarding contractual capacity should not be disclosed to the client at this time.  Under these circumstances the attorney may withhold the negative assessment since it is not directly relevant to the matter at hand (i.e., testamentary capacity) but should consider counseling the client about seeking further psychological or psychiatric treatment.

4. Advocates for the courses of action chosen by the client.

Elder and special needs law attorneys, like all attorneys, owe a duty of loyalty to their clients and must zealously advocate for them, consistent with state rules of professional responsibility (See Model Rule 1.3: Diligence.). 

When the client’s chosen course of action is logical and appropriate, the attorney is bound by the client’s decisions setting the objectives of the representation. (See Model Rule 1.2: Scope of Representation & Allocation of Authority Between Client & Lawyer, Section (a)).

However, when the client decides to pursue an unusual course of action that appears contrary to the client’s best interests, the attorney should inquire into the client’s decision making process and, if appropriate, counsel the client against such action.  If the client suffers from diminished capacity, protective action may be indicated.  Attorneys should consult with their state rules to determine the next steps possible, advisable, and/or required.

5.  When developing a plan to secure and pay for long term supports and services should:

a) Strive to determine the client's  wishes and values in order to achieve the client’s objectives concerning living options, health care, loved ones, and property; endeavor to preserve and promote the client’s dignity, self- determination, and quality of life.
b) Counsel the client about the full range of long-term service options, risks, consequences, and relevant costs;
c) Counsel the client as appropriate in light of the client’s needs, personal values, wishes, best interests, and the alternatives available; and
d) Counsel the client as to the estate planning and tax implications that the client’s choices for long term service options will have on his or her property.

At all times during the representation, the attorney should be mindful of MRPC 2.1 which states the “lawyer may refer not only to the law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”  Attorneys in general, and elder law and special needs law attorneys in particular, often are called upon to assist clients in times of crisis.  In elder law and special needs law practices, such crises often involve the death, disability, or the long-term illness of, or transitions in living arrangements  for, a client or loved one.  Counseling clients in these times of crisis requires compassion and the ability to clearly analyze the client’s circumstances and options, assess risks, present options, and make recommendations.   The attorney should be mindful that the client’s goals should guide the actions of the attorney.  Offering a solution to the client’s problem is inappropriate when the steps and objectives conflict with the client’s values.   

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