William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Month: October 2015

Cooler Heads Prevail

By Mitch Smithpeter, Elder Law Clinic Student, Fall 2015

“I’ve been thinking about what you told me to do, and I have a problem.” Though our client was trying to remain calm, I could sense the frustration and distress in her voice. Our client, a woman in her seventies, had come to the Clinic to find out if her Power of Attorney, which had been set up for her by her son while she was temporarily incapacitated, was still in her best interest. After some consideration, we at the Clinic agreed that it was not and subsequently set our minds to creating a new Power of Attorney for her. Now, a new problem had arisen: she could not find anyone willing to serve as the agent for the new Power of Attorney. Her relationships with both of her children were sour, and she had no other living relatives that she could assign. She had a few friends, but they were her age and were not willing to assume the added responsibility to act as the agent. She indeed had a problem.

While listening to her, admittedly, I was not as immediately concerned as I probably should have been, mostly owing to my lack of experience. I figured that there had to be some organization out there that would act as agent. After all, several organizations act as guardians for people who have no one else, so why not as an agent? I was brought back down to earth soon after; there really was not an organization that would act as agent. I was surprised, and frustrated. I felt righteously indignant that this woman needed help and there was no one willing or able to offer that help.

In a team meeting a few days later, I explained the situation to our supervising attorney. As clients sometimes do, I came to the meeting secretly harboring a hope that our supervising attorney could point out an obvious option we had missed, pull a rabbit out of her hat, or work a small miracle. I have been told that I have a terrible poker face, and as we discussed the situation I am certain our supervising attorney could detect my frustration with the suboptimal choices. As we talked, she offered our group counsel. “You have to remember that this is the client’s problem.” Upon hearing this I thought, “Well, yeah, but she came to us, and so now it’s our problem.” The full force of what she meant did not hit me just then. It finally did when we met with the client to explain what options she had. In that meeting, I realized that my job as a student attorney was to objectively find and present the available options to the client. My job was to represent the client zealously, but “zealously” did not mean that I needed to pull a rabbit out of a hat or part the Red Sea. While I could empathize, I did not need to feel frustrated; I had done my job.

While it may sound callous at first, this realization brought me immediate relief. Not because I was glad the problem was hers and not mine. Rather, I realized that an attorney must be careful not to let the client’s problem become his or her own so the attorney can do the best job possible. If we let the problem become our own, we may be more apt to start giving subjective advice, not objective counsel. Just because the available options are not what we want does not mean there is no hope, or that we are not doing our job. I realized that to maintain a clear, objective view of the situation I had to refrain from becoming engrossed in the situation. Empathy, to an extent, was acceptable, even advisable, but not to the point where it clouded my judgment. By allowing the problem to remain the client’s problem, I could remain clearheaded. True, we must look at the evidence in the light most favorable to the client, but we can still do that from an objective standpoint. As is the case with many problems, cooler heads will prevail. While empathy helped me be human, objectivity helped me be an attorney.

Advising, Not Choosing

By Catherine Brown, Elder Law Clinic Student, Fall 2015

Watching the people we love begin to slow down is hard.  The health problems may be physical or mental, occurring as part of the natural aging process or being exacerbated by a specific diagnosis.  Either way, the question often arises: can this loved one continue to live at home, or does he or she need institutional care?

At the risk of sounding heartless, I am a big advocate for institutional facilities.  Three of my grandparents have received or are receiving institutional care: two were in Alzheimer’s/dementia wings for the final years of their lives, and one currently lives in an assisted living facility.  Personally, my family has had positive experiences with the facilities and the staff who work there.  I have peace of mind knowing that Grandpa – who was widowed twenty years ago, can no longer drive, and doesn’t pay attention to medical details – can socialize with people his age just by walking down the hall, and gets the correct doses of medication each day with the help of the nurse on call.  Similarly, it was a relief when my other grandfather started receiving institutional care: if he had another fall, a worker would help him; telemarketers wouldn’t trick him into buying another state-of-the-art sound system or collectable DVDs; and he’d have someone to ensure that he bathed regularly and wore clean, unstained clothes.

Not everyone views facilities as favorably, however.  People have well-founded concerns about institutions, and argue that the facilities provide impersonal or loveless care, limit residents’ autonomy, and simply don’t have the charm that a home with decades of memories can bring.  When I expressed a pro-nursing-home view to one client, she incredulously asked me, “Why do you feel this way?”  To her, keeping her mother at home for as long as possible with in-home caregivers is the top priority.  This arrangement is causing her – and us at the Elder Law Clinic – a lot of extra work and concern that would be mitigated if her mother was receiving institutional care instead.  However, it is important to remember that it is not our job as attorneys or law students to make personal decisions for the clients based on our individual preferences.  Instead, we have a duty to outline all of the available legal options, let the client choose what is best for herself and her family, and work rigorously to help the client achieve her chosen goal.

When a loved one slows down, there is no easy, “one size fits all” solution to their care.  In my family alone, my grandfathers got to their respective facilities very differently: one voluntarily stopped driving and checked himself into assisted living, while the other one refused to admit that he had become incapacitated and nearly sued his power of attorney for acting on his behalf.  Therefore, when counseling clients, it is important to remember to listen to their goals and tailor your advice to fit those objectives, rather than simply projecting your personal views onto their unique situations.

Adults with Developmental Disabilities: Unique Aging Challenges

By Sarah Pitts, Elder Law Clinic Student, Fall 2015

Before I came to law school, I worked as direct care staff and day program staff for adults with developmental disabilities. It was one of the most challenging and rewarding jobs I have ever had. I learned to live and work with people who had various talents, interests, and abilities. I met one lady who lacked most of her fine motor skills but could tell me in a matter of seconds the day of the week that corresponded with any date past or future with perfect accuracy from memory. I took many trips to Logan Airport with another woman who enjoyed watching the planes take off and wonder where they were going. One of my clients loved to imitate the Three Stooges and had the most contagious laugh. I became very close to some of my clients, and I grew to care deeply about issues that concerned the folks I worked with.

Aging is an issue that affects us all, but it affects adults with developmental disabilities in distinct ways. The normal aging process is often compounded by reduced mobility, poorer general health, medications, surgeries, and other concerns. Those with developmental disabilities are at a higher risk of developing chronic health conditions at younger ages than other adults, owing to biological factors related to syndromes and associated disabilities. They may also have difficulty accessing adequate healthcare because of environmental and communication challenges. Additionally, as their close family members grow older, it may become harder to provide much needed care and support, either at home or in community living situations. The needs of adults with developmental disabilities tend to be unique to each person, and long-term care facilities are often ill-equipped to handle individual needs.

There is hope, however. People with developmental disabilities are living longer than ever before and have better access to health care than had past generations. Doctors and caregivers are learning more and more about how aging specifically effects this population, and they are increasingly aware of how medications interact. Because many individuals already qualify for Medicare and Medicaid, finances are usually not a problem for long term care.

Some pre-planning will further ease the aging process for individuals with developmental disabilities and their families and caregivers, including: (1) effective guardianship and a plan for what will occur when a guardian is unable to support their loved one; (2) preparing long-term care facilities for caring for adults with developmental disabilities; and (3) training families and caregivers regarding unique challenges facing the aging developmental disability population.

Too Much Power in a Power of Attorney: Challenges and Issues for the Elderly

By Kristel Tupja, Elder Law Clinic Student, Fall 2015

“Children can really hurt you sometimes.” I can feel the sadness and emotion emanating from our potential Clinic client.  The woman reached out to us to discuss the contents of a Power of Attorney she granted to her son.  Spiraling into depression after simultaneously losing her job, her house and filing for bankruptcy, the woman saw it best to grant her son Power of Attorney to help her during this trying time.  But help soon turned into harm, as her son began threatening his mother that he would march to her bank and withdraw the money on her behalf.

Rising above her turmoil, our potential client decided to take charge of her life once more.  She asked us to make sure the Power of Attorney was still in her best interest.  What rights had she granted to her son?  Can he really march to the bank now that she is better and take out money on her behalf?  She needed him to help her with her finances when she was in dark place, but her recovery prompted her to become quite diligent with her finances.  Can the son still maintain this Power of Attorney?

The potential client had granted her son the power to do virtually anything and now was conflicted; her relationship with her son was already strained but she feared that it could get worse if he found out that she wanted to revise or revoke her Power of Attorney. The important fact in these kinds of cases is that a Power of Attorney should be granted to someone you can really trust.  Nonetheless, when drafting a Power of Attorney, it is best to be thorough and cognizant of what powers you are granting away, regardless of who you are granting them to.  Further, drafting a “Springing Power of Attorney” that is only valid during times of incapacitation could avoid situations like these.

What I have gathered from the Clinic experience is that the answers are not always black and white.  There isn’t always a clear solution to a situation as sensitive as a contract with someone you love and have cared for throughout your entire life.  In an effort to help clients like this one, the student attorneys work together to come up with different options, all the while keeping the client’s best interests in mind.  The answers might not always be the easiest to understand or come to terms with.  Oftentimes, we are called to think as counselors and attorneys at the same time.  But what ultimately matters, above all, is that the client is presented with the options that will allow him or her to make a decision that is in their best interest.

Easy Targets: Seniors Are More Susceptible to Various Fraudulent Schemes

By Amy Meiburg, Elder Law Clinic Student, Fall 2015

Working for the SEC this past summer, I became more aware of the challenges that are increasingly facing senior Americans – fraud. Americans over the age of sixty-five (65) now hold a vast majority of wealth in our economy. Further, these individuals are frequently targeted by unscrupulous individuals for a variety of schemes. Seniors are susceptible for many reasons: lack of understanding of new technologies, inability to recognize untrustworthy facial cues (NPR), financial investing history (id.), landline phones which can be contacted by telemarketers, and various other reasons.
Knowing that seniors are less likely to be discerning when it comes to investing or diligence in determining the worthiness of junk mail, perpetrators of fraud target seniors for various schemes. One such scheme is the door-to-door magazine salesmen. For this scheme, the schemer approaches the target with a story about selling magazines for some charity, finagles payment for a magazine order, then absconds with the cash.

This is a minor theft compared to the amounts that fraudsters can inveigle. This summer I attended an SEC hearing in the Colorado District Court where an interested party was allowed to speak regarding the alleged fraud. This senior invested more than $10,000 in “the Matrix,” buying squares which were guaranteed to return 600%. Further, she reported and paid taxes on the income when the schemers sent her a 1099 without ever having paid her any of the funds. This is just one example of what can and does happen to seniors across the country.

In addition to being the target of fraud, which can potentially decimate a life savings, seniors can also become involved in fraudulent schemes where they are complicit in the scheme itself without even knowing it. For example, I worked with a senior this summer who sold fraudulent securities and settled with the Commission for over $100,000 dollars. At 87, this individual had already declared bankruptcy, lost his home, and spent thousands on medical expenses for his terminal cancer. All of this factored into his becoming embroiled in a scheme to defraud investors. He claimed that he was tricked into selling fraudulent securities. Whether or not his claims were true, he is an example of what can happen to seniors who are less likely to question schemes that seem too good to be true.

The only way to help seniors avoid being the target of fraud is to call attention to the problem and continue to educate both those seniors and their families. There are many ways this are done. Many news organizations are calling attention to this problem, and seniors’ assistance organizations across the country have educational programs for seniors to help them recognize potential fraud. Although these are both excellent ways to start the process of protecting seniors, much more needs to be done. These despicable actors prey on those who need the most protection, and we as a society need to further our involvement in their protection.
NPR, Why It’s Easier to Scam the Elderly, http://www.npr.org/sections/health-shots/2012/12/06/166609270/why-its-easier-to-scam-the-elderly

The Importance Of Recognizing A Legal Issue

By Fred Freeman, Elder Law Clinic Student, Spring 2015

During the summer of 2014, I worked for the City Attorney’s Office in Norfolk, Virginia.  While there, I spent a lot of time in the Juvenile and Domestic Relations Court, spending a significant portion of my summer researching and dealing with cases involving guardianships and abuse of adolescents.  However, I never had any contact with the juvenile clients we were representing, outside of sometimes seeing them sit in front of a judge.  Since joining the Elder Law Clinic, I have been assigned two possible cases of elder abuse, and I now realize how many issues lawyers actually face when dealing with abuse claims.

Unfortunately, as a current student in the Elder Law Clinic, and as a future lawyer, I know that not every case that comes across my desk can be accepted.  This does not mean that some cases won’t tug at the heartstrings.  Recently, I met with a woman who has faced possible mistreatment at the hands of her landlord, including claims of verbal and financial abuse.  However, her claims are mostly based upon her statements alone, and there is not much we can do for her besides try and get her out of her lease agreement.  I also had a client who claimed his daughter might be stealing from him, but his Alzheimer’s raises issues regarding the validity of his statements.  After meeting with both of these prospective clients, my first instinct was to do everything I could to help them reach their happy endings, but this isn’t always possible.

In the end there wasn’t much to be done for either of them.  There was both a lack of evidence and a real legal precedent to pursue action.  When I worked for the City Attorney, all the cases I dealt with had already begun, with evidence of abuse, and the necessity of legal action already proven inside and outside of court.  I never had to face the possibility of a potential client who may be suffering, yet has no real recourse.  During my experience with the Elder Law Clinic, I have discovered the importance of laying the foundation for a case.  The potential clients I mentioned earlier may not be able to find a solution to their problems without showing more to support their claims.  Hopefully we will be able to support them both in laying a foundation for, and carrying out a plan to help them achieve their goals.

My experience at the Elder Law clinic has taught me to always search for the issue for which I can provide assistance.  Getting caught up in the turmoil of emotions and troubles that your client has may end up clouding the actual problem, and lead to ineffective counsel.  It is important to remember that without a legal issue to pursue, we may be left powerless to help those who really need it, and the Elder Law Clinic strives to find these issues in every potential case.