The elder and special needs law attorney:
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)
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.
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)
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.)