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Vol. 73, No. 9, September 2000
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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.
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