Special Focus Issue - Elder Abuse
Ethical Considerations in Elder Law Cases
by Betsy J. Abramson
| Betsy Abramson, U.W. 1981, served as the
director of the Elder Law Center of the Coalition of Wisconsin Aging
Groups from its creation in 1991 until September 2000. She consulted
with these elder law attorneys in preparing this article: Ben Adams,
Barbara Hughes, and Margaret Hickey, all of whom she gratefully
acknowledges for their thoughtful input; however, they are not
responsible for any of the opinions expressed in this article. The
author thanks attorney Abigail Rupp, a former CWAG Elder Law Center
Fellow, in researching many of the issues for this article. |
Ethical issues present
special twists in elder law because of the unique nature of the
practice, often involving both spouses or multiple members (and
generations) in a family. In addition, there often are issues related to
who actually is directing the casework, to whom information is (or can
be) relayed, and concerns about the mental status of the elder involved.
These issues have often been referred to as the "4 Cs"
of Ethics in Elder Law: 1) Client Identification, 2) Conflicts of
Interest, 3) Communications, and 4) Competency. These ethical issues
have the potential to become even more challenging where concerns are
raised about possible financial or physical abuse or neglect of the
elder. The following scenarios highlight many of these issues. A
discussion of the issues raised follows each scenario.
Possible Financial Abuse by Agent Under a Power of
Attorney
| Situation A. You draft a financial power of
attorney for Mr. A that includes a gifting power. You meet with Mr. A
and his son, the agent under the financial power of attorney, to execute
the document. A few months later, Son calls and asks for help in
transferring the title on Mr. A's cabin up north to Son's name. You know
that outside some small investments, this real estate is the only other
asset Mr. A. owns. |
This scenario raises several questions regarding possible financial
abuse. One issue is what discussions had taken place prior to the
original granting of gifting powers. Lawyers generally should be wary of
adding gifting powers, considering a client's entire estate plan, and in
the case of an elder, the potential impact on Medical Assistance
eligibility,1 before adding such a clause to
a power of attorney. Even if a client ultimately decides to include a
gifting power, a lawyer should consider additional safeguards, such as
limiting the amount of the gift, identifying precisely who may be
recipients, and having the gift approved by a third party whenever a
relative might benefit from gifts.
This situation begins with a basic "Client Identification" problem.
While it might appear that the son has now become your client, in fact,
Mr. A. is still the client. Indeed, in the lawyer's office, the son
should be perceived as only the agent of the father under the document
– that is, as standing in the shoes of the father. Accordingly, it
is imperative to find out Mr. A.'s preferences regarding this transfer,
as ethical rules require a lawyer to keep his or her client reasonably
informed about the status of the matter.2
Ideally, the lawyer would have discussed this cabin when drafting the
power of attorney, that is, the lawyer already would know the father's
intent regarding the cabin. If not, it is important for the lawyer to
call the father and arrange to meet with him – alone – to
determine the preferences. The lawyer must take direction from the
client, not the client's family.3
It certainly is a potential conflict of interest for the agent/son to
be giving himself his father's main piece of real estate. Accordingly,
before drafting the transfer documents, the lawyer must be confident of
the father's preferences. Even if, when drafting the power of attorney,
the father had indicated a desire to transfer the cabin to the son,
careful lawyers should reconfirm this intent, particularly if the
father's health had significantly deteriorated since the document's
execution (making the potential for Medical Assistance eligibility more
likely) or if a significant time had lapsed (for example, a year), since
the document was executed. A lawyer might even consider sending the
transfer documents to the principal for approval, before assisting the
agent.
If the father is now incompetent, the lawyer has an additional duty
to discuss the impact of the transfer with the agent, reminding the
agent of his fiduciary duty to the father (principal) and explaining the
consequences of such an action. The lawyer also may need to reveal to
the agent that the father's estate contains basically only this asset.
This would not be a breach of the confidentiality requirements, as the
agent is standing in the client's shoes.4 In
this situation, the lawyer not only may reveal the confidences, but must
do so, in order to adequately inform the agent of the client's situation
and the potential impact of the transfer. Perhaps the lawyer did not
know the father's intent regarding the cabin, and, because of the
father's current incompetence, the lawyer no longer can discern it. In
this case, a careful lawyer will not assist in the transfer. If the son
indicates an intention to go to another attorney to go forward with the
transfer anyway, after very careful consideration including ruling out
all other less drastic solutions, a lawyer might consider seeking a
guardianship over the father or other protective action.5 This action would be out of concern that another
lawyer actually might assist with the transfer, thereby depriving the
father of this critical asset, or commencing an action to prohibit the
agent from making the transfer.
Possible Violation of Fiduciary Duty by Agent – in Violation
of Previously Executed Estate Plan
| Situation B. Same scenario as above, except that a
few years ago you drafted Mr. A's will for him. The will included a
provision that the cabin up north was to be put into a trust in the
names of Mr. A's three children and six grandchildren, until such time
as the youngest grandchild turned 21. |
RED FLAGS! As with Situation A, the lawyer must talk to the client,
Mr. A., about the proposed action, and not take direction from the
family.6 The lawyer must talk to Mr. A.
about his preferences to determine whether he had voluntarily changed
his mind about his plans for the cabin. If the father was clear that he
had no interest in changing his testamentary plan, the lawyer should
discuss with the client the possibility of revoking this durable power
of attorney and executing a new one with a different agent or perhaps
seeking a conservatorship.7 The lawyer also
must talk to the agent and clearly inform him that his father is still
the lawyer's client and that the agent's proposed action is inconsistent
with his father's intent. If the agent still threatens to go ahead with
the transfer, the lawyer should consider taking protective action such
as filing a guardianship and reporting this threat of financial elder
abuse to the county's lead elder abuse agency.8
If there are doubts about the father's competency, the lawyer should
consider doing a mini-mental exam or having a trained professional
conduct a mental assessment and medical exam of the father. In
conducting a mini-mental exam, the lawyer should gently question the
father, using the legal standard for competency, asking him: 1) who he
is; 2) what he owns in general terms; and 3) whether he knows who his
natural heirs are. That the lawyer has concerns about the father's
competence naturally would raise even more concerns about this property
transfer because of the greater likelihood that the father will need
Medical Assistance eligibility.
Perceived Abuse Between Spouses
| Situation C. You meet with Mr. and Mrs. C. to
assist them with their estate plan and to draft powers of attorney for
health care and finances. Mr. C. appears rough, demeaning, and nasty to
Mrs. C., making disparaging comments about how little she understands
anything, and how all the money is really his since he worked his whole
life and she sat at home "doing nothing." After all, he says, the kids
have been gone for more than 35 years. Mrs. C. gingerly mentions that
she'd like to remember her sister and her church in her will. Mr. C.
sneers and bellows "Not on your life are we leaving your crazy sister
and those phonies at the church one dime!" |
In this situation, the lawyer must make clear that he or she will not
represent the couple jointly if their interests and needs are
adverse.9 In fact, most concerned lawyers
would inform the clients that, based on their conversation, the lawyer
will not represent either member of the couple and encourage them to
seek separate counsel. While still together in the lawyer's office, the
lawyer should quite clearly explain that each spouse has the right to
his or her own will and that the wills do not have to mirror each other.
The lawyer also should explain marital property law (and that each
spouse owns one-half of the couple's assets) and other relevant estate
laws. The lawyer should work on drawing out the wife, to get more
clarity about what she wants. The bottom line is that if the couple
can't agree on their choices, the lawyer must inform them that he or she
cannot represent them jointly.10 Once the
lawyer withdraws, verbally and then later in writing, the lawyer may
consider calling the woman at home and talking to her about her rights
and her need to seek separate representation, as well as a possible
referral to a domestic violence agency.
It is very important to convey to the couple that, in the event the
spouses agree on their preferences and that the joint representation can
take place, the lawyer may not keep secrets of one spouse from the
other. If the lawyer is to represent them both, the lawyer can continue
to do so only so long as their interests are not adverse to each
other.11
Physical Abuse by an Adult Child
| Situation D. You get a call from a social worker at
the area hospital about an elderly woman admitted to the hospital who
was brought into the Emergency Room last night with chest pains, a
fractured wrist, and a head wound. Upon gentle probing from the ER
staff, Mrs. D. admitted that her unemployed adult son, who lives with
her, had inflicted the injuries. Mrs. D. also told the social worker
that she was scared of her son, that this was not the first time he had
harmed her, that he intimidates her into giving him money, and she
doesn't know what to do. The social worker, with the client's reluctant
agreement, asks you to meet with the client. |
First, the compassionate and wise attorney will recognize that an
elder law attorney is part social worker and that, among other things,
this means that this will probably not be a one-time meeting; rather,
this is a delicate situation that involves earning the woman's trust and
continuing to meet with her. A sensitive elder law attorney also will
recognize that this client probably will not be comfortable with advice
that she should just "throw the bum out" or that she should be
responsible for getting her son "in trouble with the law" (despite how
much he appears to deserve it).
Thus, while it is very important for the lawyer to explain that her
son's actions clearly constitute a crime, the lawyer must then listen
carefully to the client to determine whether she wants the attorney to
report the situation to either the county's lead elder abuse agency or
to the criminal justice system. Absent her consent, such a report would
be a violation of the client's confidence.12
Even while encouraging the client to make a report herself, or to
authorize the lawyer to make the report, the lawyer should be cognizant,
first and foremost, of the client's safety. While the lawyer may have a
very strong desire to call the police, such an action actually could put
the client in further danger due to concerns that the son may retaliate.
Similarly, the lawyer must be conscious of the same safety concerns in
considering options such as seeking a temporary restraining order under
section 813.12
of the Wisconsin Statutes, setting up separate bank accounts,
petitioning for conservatorship, or taking any actions to remove the son
from the client's home such as changing locks. One option might be to
assist the client, if she so chooses, in moving to an apartment or
assisted living arrangement, thereby permitting her to gracefully inform
her son that she is moving to a "seniors only" housing arrangement. This
is because it is very common in these types of situations for elderly
victims to state that they don't want their children (or spouse) to "get
into any trouble"; they only want the abuse to stop.
Other options for the lawyer to consider are discussing with the
client other types of traditional domestic violence safety planning such
as: a) always having a bag packed – or stored with a reliable
friend or other relative – that includes important documents such
as insurance papers, Social Security, pension and bank account and
investment information, an extra set of keys, and medications; b) having
a code worked out with a neighbor or friend to indicate when the
situation in her home is dangerous; c) trying to move out of dangerous
rooms (for example, the kitchen or bathroom) if her son gets violent
again; d) determining whether there is an appropriate domestic violence
shelter in her community; and e) other actions.13 If the client's competence appears questionable,
the lawyer should recognize that the client's recent trauma could be
having a very significant effect on her competence, and thus the lawyer
should not rush to make presumptions about her future ability to make
her own decisions. Rather, the lawyer should maintain as normal a
lawyer-client relationship as possible.14
Finally, even if weeks or months later the lawyer believes that the
client is not competent and needs protection, the lawyer should be
extremely reluctant to file for guardianship against her.15
Second Marriage, Financial Abuse, Threatened Criminal Action
| Situation E. Mr. and Mrs. E., who are in their
second marriage, have been your clients for 10 years. You most recently
helped them with a will and explained the Medical Assistance spousal
impoverishment provisions to them,16 due to
their fear that Mrs. E. may have to enter a nursing home because of her
progressive decline from Parkinson's Disease. Mr. E. is very intent that
"the nursing home not get their money" and told you that he plans to
give as much money as he can to his daughter (from his first marriage).
When Mrs. E. temporarily leaves the room to use your rest room, Mr. E.
mentions that he doesn't care what it takes, he will just sign his
wife's name, as he has in the past, to all necessary documents to get
the funds ultimately transferred to his daughter. |
This situation demonstrates many ethical issues. First, it appears
that the clients' interests are adverse and, as such, "family
representation" may not be possible.17 An
elder law attorney might come to the same conclusion whenever there is
antagonism demonstrated between family members, an unwillingness to
disclose information between spouses or, as here, threatened criminal
activity. Even if the husband had a financial power of attorney properly
drafted under section 243.07
of the Wisconsin Statutes, a careful elder law attorney would not go
forward with such an action without talking to the wife as well, and
fully discussing all of the implications.
The lawyer also should explain that he or she will not represent the
client in any illegal activity such as what is being proposed by the
husband.18 Rule SCR 20:1.16
(a)(1) requires a lawyer to withdraw when the lawyer's services will
be used by a client in materially furthering a course of criminal or
fraudulent conduct. The lawyer should make every effort to explain to
the husband the serious consequences of what he is proposing to do, that
is, that this threatened illegal activity could cost him significantly
more legal fees and involvement in the criminal justice system. The
lawyer also should explain that even if the husband did transfer the
property, his wife has the right to get it back from the transferee
under the marital property law.
The lawyer should explain clearly and firmly that what the husband is
proposing to do – signing his wife's name to documents without her
authority – is first of all illegal and second may result in
serious consequences (that is, denial of eligibility for needed Medical
Assistance). The lawyer also should explain that he or she may not
assist the client in this planned illegal activity.19 The lawyer also must inform Mr. E. of the
lawyer's ethical obligation to, in fact, inform appropriate authorities
(for example, Medical Assistance eligibility personnel) of Mr. E's
stated intentions. SCR
20:1.6(b) provides that a lawyer not only may, but must reveal
confidences "... when the lawyer reasonably believes it is necessary to
prevent the client from committing a criminal or fraudulent act that the
lawyer reasonably believes is likely to result in ... substantial injury
to the final interest or property of another." In this case, the injury
would be loss of Medical Assistance eligibility by his wife.
When the wife returns to the office, the lawyer should explain that,
based on the husband's previous comments, it appears that the spouses'
interests are adverse and, as a result, the lawyer will not represent
either of them; rather, the lawyer should encourage them each to get
separate counsel. The lawyer also should explain that there are safe and
legal methods of planning for Medical Assistance eligibility that the
lawyer can assist with, and that if the spouses agree on one of these
suggested courses of actions, the lawyer still may be able to represent
them. However, if the spouses' interests are adverse, that is, they
don't agree on a course of action, as indicated above, the lawyer should
withdraw verbally and then follow up in writing, including repeating the
lawyer's intention to report the husband for his planned criminal
activity if he intends to go through with it.20
Conclusion
A general elder law practice has traditionally raised unique ethical
issues. Cases that involve possible issues of elder abuse raise even
more ethical concerns ranging from the propriety of "family
representation," client identification, confidentiality, and appropriate
communication to determining the competence of the client.
Endnotes
1 This article does not
attempt to explain any of the eligibility rules for the Wisconsin
Medical Assistance (Medicaid) program. For readers unfamiliar with this
government welfare program, Medical Assistance (unlike Medicare)
provides benefits for long-term care in a nursing home. The relevant
factor regarding eligibility that is referenced in this article is that
there are very strict rules regarding "divestment" – the giving
away of money or other assets for less than fair market value within a
certain time period prior to application. See Advising Older Clients
and Their Families, chapter 11, by the State Bar of Wisconsin for
detailed information.
2 SCR 20:1.4
(a), (b); SCR
20:1.2. See also Disciplinary
Proceedings Against Jill S. Gilbert, 227 Wis. 2d 444
(1999).
3 See Disciplinary
Proceedings Against John W. Strasburg, 154 Wis. 2d 90 (1990),
involving an attorney who was disciplined for, among other actions,
transferring a client's property on the instruction of family members
only, never meeting with the client, because the lawyer stated he "did
not make house calls.
4 See SCR
20:1.6(a).
5 See SCR
20:1.14 Client Under a Disability. Section (b), states that a lawyer
"may seek appointment of a guardian or take other protective action with
respect to a client, only when the lawyer reasonably believes that the
client cannot adequately act in the client's own interest." See
also ABA Standing Committee on Ethics and Professional
Responsibility Formal Opinion 96-404, which similarly recommends that
under these circumstances the attorney seek protective action on behalf
of the client but not withdraw when a client is under a disability.
6 See supra note
3.
7 Wis. Stat. §
880.31.
8 Wis. Stat. §§
46.90(1)(b) and (2). See also, supra note 5.
9 See SCR
20:1.7(b)(2).
10 See SCR
20:1.16. A lawyer must withdraw from representation of a client if
the representation will result in violation of the Rules of Professional
Conduct. In this situation, the violation would be of SCR
20:1.7(b)(2).
11 SCR
20:1.7(b)(2)
12 SCR
20:1.6.Note also that a physician or nurse at the hospital already
may have reported this incident to law enforcement under separate law
requiring them to report certain injuries they believe resulted from a
crime.
13 For a comprehensive
listing of ideas, see Safety Plan and Financial Safety
Planning for Older Abused Women, including the Financial Safety
Planning Checklist, produced by the Wisconsin Coalition Against
Domestic Violence and the Elder Law Center of the Coalition of Wisconsin Aging Groups.
14 SCR
20:1.14
15 SCR
20:1.14(a) and ABA Standing Committee on Ethics and Professional
Responsibility Formal Opinion 96-404.
16 Wis. Stat. § 49.455.
17 SCR
20:1.7. See also, Disciplinary Proceedings Against John W.
Strasburg, 154 Wis. 2d 90 (1990).
18 See SCR
20:8.4(c). It is professional misconduct for an attorney to engage
in dishonesty or fraud.
19 See SCR
20:1.2(d).
20 SCR
20:1.16.
Wisconsin Lawyer
