William & Mary Elder Law Clinic

Serving Seniors in the Greater Peninsula Area

Month: April 2017

Acting Against the Proverb of Scarlett O’Hara

By Paige Melton, Elder & Disability Law Clinic Student, Spring 2017

“I’ll think about it tomorrow.” – Scarlett O’Hara, Gone With the Wind

Scarlett said it, but you should not.  Well, at least when it comes to estate planning.

To some, estate planning means thinking about difficult topics—what will happen to you, your possessions, and your family when the time comes that you no longer have a voice.  Understandably, it is tempting to think about these things tomorrow. However, I want to strongly emphasize to everyone—do not “think about it tomorrow.” Think about it today!

Estate planning does not have to be a dreary process. Estate planning is an exercise of your personal autonomy. It is an empowering thing!  There are legal schemes in place to protect and defend your voice—use them! Putting your estate planning off until “tomorrow” does nothing but undermine your present power to safeguard your desires, dignity, and voice.  Anything can happen tomorrow, what if your voice is gone before you’ve taken action to materialize it?

For this reason, it is incredibly advantageous to plan proactively.  Yes, sadly, there may come a day when you cannot control all that you once did.  But how empowering is it that you can still have a strong, clear voice that everyone must listen to? Estate planning protects your voice.  Do not be tempted by the motto of Scarlett O’Hara.  Use your power now to protect your voice from the uncertainty of tomorrow.

How to deal with a third-party in the client-attorney relationship?

By Zhiqi Guo, Elder & Disability Law Clinic Student, Spring 2017

When a client approaching us with a problem he or she wants us to solve, it not only raises a client-attorney relationship, but will also possibly raise a relationship between the attorney and a third party, especially in the elder and disability law clinic, when people need to be accompanied by another person, both ethical and practical issues will arise.

First possible issue is confidentiality between the client and attorney. For the attorney to be able to communicate with a third party, he or she need a permission from the client. However, attorney-client privilege protects only confidential communications between an attorney and client in connection with the attorney providing legal services. Having the client authorize disclosure to the third person doesn’t save the privilege. There is no privilege for an attorney communicating with a third-party. The clients need to be clearly informed about the confidentiality issue before they permit any disclosure.

Another issue is client-communication. For example, in an estate planning situation, when an elder or disabled person needs a will, he or she may visit an attorney while accompanied by a family member. Due to the confidentiality issue, the attorney wishes to talk to the client alone. In the meantime, if the client keeps the family member in present during the meeting, the attorney needs to observe whether the client makes the decision himself or herself. If the client has trouble communicating, and the attorney communicates with the family member more often, an ethical issue may arise. For instance, if Mom is disabled and needs a will, but Daughter is the one mainly talks to the attorney, and Daughter is the beneficiary of the will, it may raise concerns that Mom is under influence or control of Daughter, especially when Daughter is the only one taking care of Mom. To eliminate these concerns, the attorney may request a private conversation with Mom. This may create tension between Daughter and attorney, and even create trouble for Daughter and Mom.

To release the tension, the attorney needs to co-operate with the client and the third-party. First, the attorney should explain to the client the confidentiality issue in the first place to avoid any confusion. Second, if the client insists involving a third-party to help the whole process, if the attorney has any concern about undue influence, rather than accuse the third-party, he or she should explain in details about the legal requirement on the client’s independent decisions. On the other side, the attorney’s insistence on talking to the client alone also removes doubts on the third-party in the future. Finally, if the third-party still refuse private communication between the client and the attorney, the attorney may withdraw himself or herself, and even report this suspicious situation.

Involving a third-party is quite common in elder and disability cases. How to deal with the third-party while still maintain a good relationship with the client is a critical skill for new lawyers.

 

Coming Out (or Staying In) to Grandparents

By William Waller, Elder & Disability Law Clinic Student, Spring 2017

Upfront, I believe I should provide a brief description of myself.  My name is William, and I am a gay male in my late twenties.  Although I grew up in the liberal suburbs of Washington, D.C., I come from a socially and religiously conservative family.

I knew I was gay from an early age, and unquestionably the most difficult part of fully accepting my sexuality has been telling members of my family.  Frankly, I grew up around a lot of people who held very disparaging views of gay people.  As a result, I spent many years praying I would wake up one day and be straight.  As I got older, however, I realized that I would always be gay and will eventually have to come out to everyone meaningful in my life, particularly my family.  Coming out to my immediate family member has resulted in a variety of reactions: from anger to tears to indifference to joy, I believe I have ran the gamut of emotions.

While there is a lot of discussion about coming out to parents and siblings, a topic that I feel does not generate enough discussion is coming out to your grandparents.  At least for me, grandparents were probably the most difficult group to handle because of the generational divide and the infrequency with which I saw regularly saw them.

My paternal grandfather passed away when I was a toddler, before I had any idea of what it means to be gay.  My maternal grandfather and paternal grandmother both passed away when I was in college.  At that point, I was already out of the closet to all my friends and a few select family members.  However, these grandparents passed away before I ever told them I am gay.  Looking back, I am sad to think that my deceased grandparents never got to know the “real” me.  While I do not identify myself solely by my sexuality, it has undeniably shaped who I am and how I view the world.  At the same time, I knew I did not have the courage then to come out to them, fearful that their love of me would not be strong enough to accept news that I knew would be extremely difficult for them to understand.

My maternal grandmother, Meme, is my only grandparent still alive.  My aunt told Meme a few years ago that I am gay, believing it would be best for my grandmother to hear it from her.  To my surprise, my grandmother said she did not care.  Since then, an enormous weight has been lifted off my shoulders, as I am no longer carrying around the insecurities about coming out that plagued my childhood.  Now, I bring my boyfriend to family events (a scenario I would have never thought possible when I was growing up).  At my brother’s wedding, my boyfriend and Meme bonded over Slippery Monkey cocktails.

I really do not believe in a one-size-fits-all approach to coming out to family members, particularly grandparents.  Instead, I think every family is different, and we need to respect each gay person’s choices with telling their family.  This is my story about coming out (or staying in) to my grandparents.  It is a story filled with pain, regret, and new beginnings.