Tips & Traps When Consulting With The Older Client

“Elder Law attorneys wear many hats: social worker, case manager, mediator, confidante, estate planner, family counselor, marriage counselor, grief counselor, and money manager.” Jane Langdon Null, our Elder Law faculty expert, makes this point concerning the diverse aspects of consulting with the older client during a recent CLE presentation. Jane’s twenty years of experience in this area of law provides valuable insights into the potential issues that could play a part in the overall case. I appreciate her allowing me to bring her advice to our readers on Law Tips.

Let’s look at Jane’s Tips on Consulting With The Older Client:     

Where to meet:

  • You need to be flexible and provide options to the client.  Offer to meet in their home if they have mobility issues or no longer drive.
  • Your office should have convenient parking, be handicap accessible, well-lit, quiet, provide firm chairs with sturdy backs and side arms.

The initial interview:

The client should complete a thorough legal planning form and return it for your review prior to the   initial consultation. (Note: Jane’s legal planning form can be attained by purchasing the Video Replay or the On Demand Seminar from the 2013 Elder Law Institute.)

Understand that meeting with an attorney can be intimidating.

  • Ask “icebreaker” questions to get to know the client better.
  • Don’t address clients by their first names without permission.
  • Be patient and don’t rush or interrupt the client if they get off track of the discussion: Allow ample time for an initial consultation.

Treat all clients with respect and dignity.

  • An Alzheimer’s or Dementia diagnosis doesn’t mean that the individual can’t add value and meaning to the legal planning conversation or continue to make decisions regarding his or her legal affairs.
  • Talk in hypothetical terms during the consultation and don’t directly reference the limitations of one spouse. Don’t say “When you go into a nursing home in the near future!!”

Important Topics for Discussion:

  • Is anyone in the family disabled?
  • Has either spouse ever been institutionalized for more than 30 days since 9/30/89? – being at home on an A & D waiver counts.
  • Is there a prenuptial agreement?
  • Is this a second marriage? If so, what are the family dynamics? What if all assets have to be transferred to the community spouse?
  • History of “transfers” during the past five (5) years- need to look beyond typical gifts, i.e. undocumented loans, paying off kids’ debt, disclaiming an inheritance, establishing certain irrevocable trusts.
  • Was either spouse a veteran, even if deceased? *Must coordinate V.A. and Medicaid planning!!!!
  • Does either spouse have long term care insurance? If not, is it still an option? Suggest long term care insurance to clients’ older adult children.
  • Does either spouse have a pre-paid funeral?
  • Has either spouse executed a Funeral Planning Declaration? (Note: Jane Langdon Null’s Funeral Planning Declaration is a portion of her CLE materials from the 2013 Elder Law Institute.)
  • lf a child is providing care, have they considered paying the child under a personal service agreement? Explain the Medicaid implications of paying a child without a written agreement and the tax implications of such an agreement.
  • Is a working caregiver spouse or adult child eligible for leave from their job under the Family and Medical Leave Act?

When someone says they need to get guardianship of Mom/Dad/Spouse, ASK WHY???

  • Perhaps the individual can still sign a power of attorney.
  • If not, are there assets in need of immediate management or can they pay bills from joint accounts?
  • Explain the Indiana Health Care Consent Act?
  • Are there family members fighting over property or medical issues?

Keep up to date on support services for seniors in your community.

Clients rely on us for more than just legal advice, such as recommendations on:

  • Long Term Care Placement
  • Assisted Living Facilities
  • Geriatric Care Managers
  • Home Health Agencies
  • Geriatric Physicians
  • The services offered by your local AAA
  • Senior Centers & local Alzheimer’s Assoc.

Don’t assume an individual lacks the legal capacity to execute documents based on the representations of one family member.

  • Make every effort to meet with the alleged incapacitated individual and make your own determination.
  • Recommend an assessment from a geriatric specialist.
  • Testamentary Capacity is a fairly low standard.
  • There is no set legal standard for executing a power of attorney.

Thank you to Jane Langdon Null for bringing Law Tips her practical pointers developed through dedication to her Elder Law clients.  Hopefully, you took away a few tips that are helpful in your future consultations. We’ll continue next week with Jane’s “Traps When Consulting With the Older Client,” which includes advice on second marriage situations and Medicaid planning.

The 2013 Elder Law Institute is available as a Video Replay near you, or as an On Demand Seminar.

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Our Law Tips faculty participant:
Jane Langdon Null has limited her practice to the area of Elder Law for the majority of her legal career. She currently has her own law practice on the north side of Indianapolis. Her practice focuses on elder law issues, including guardianship, advance directives, Medicaid planning and application, wills and trusts, probate estate administration and nursing home residents’ rights. In addition to advising seniors on many legal issues, she also provides assistance with determining and locating the most appropriate type of care for her clients, ensuring quality care, and coordinating service providers.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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