Ethical Issues in Representing Seniors, Persons with Disabilities and their Families

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

Background to the Issue:

Elder care law is defined as an approach to the practice of law in which the attorney focuses on the needs of the aging client as a whole, rather than a particular isolated area of the law, such as tax law or contract law.  However, this approach is often different than with the conventional attorney-client relationships.

Life Planning vs. Traditional Estate Planning

From the perspective of a “traditional” estate planner, one of the key distinctions between Estate Planning and Life Care Planning is the Elder Law attorney’s focus on “Life Planning” as opposed to “transfer by death” planning.  Elder law attorneys tend to emphasize the issues facing individuals as life experiences increase rather than on death-related transfers.  Elder care law recognizes that what concerns today’s aging population the most are health related issues, the fear of isolation and financial ruin brought about by long term care expenses. These concerns are the very heart of the practice of elder care and elder law.

The challenge to us in the field is to integrate these different emphases into a unified legal, beneficial way.

The Ethical Challenges Facing Elder Law Attorneys

Often, an elder law attorney is approached by family members at a time of crisis.  It is not uncommon for the children of a declining senior who reside out of town or out of state attorney.  You often sense the tensions and anxieties that overwhelm the family members.  As a consequence, my first responsibility is to adopt as objective judgment and reasoned analysis the very things the family members consult an elder law attorney.

Thereafter, as our relationship evolves and as a result of the family involvement, I often face questions that have never been encountered before and often must provide answers to previously un-asked questions (often hypothetical questions) before the facts of the particular situation are fully known and analyzed.  As an experienced elder law attorney, I must identify and establish the following issues:

  • Who is my client, the aging parent(s) or their adult children?
  • If action must be taken, who has authority to act on behalf of the client?
  • If the issues involve someone in a medical crisis or suffering from a terminal condition, is there sufficient time to accomplish the tasks contemplated?
  • Is sufficient information regarding the issues that need to be addressed available to me so that I can provide an informed opinion in a minimum amount of time?
  • What resources are available to assist me as the attorney (and the client) in gathering this information?  Today’s laws make this issue very frustrating.
  • In dealing with multiple parties, often the children with competing ideas and interests, what ethical issues must be dealt with?

So you see, it’s not easy to satisfy the ethical issues presented when a new family comes to me in crisis.  As you read this post, was I speaking to you and your family?

To discuss your elder care and NJ elder law matter, please contact me toll-free at (855) 376-5291 or email me at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.