William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Category: Uncategorized (page 1 of 4)

An Unexpected Development

By Gulliver Brady, Elder & Disability Law Clinic Student, Spring 2018

In my limited experience as a pseudo-professional, I have learned that a 9:30 pm email usually comes with bad news, an assignment, and a stressful night. However, last week I received a 9:30 pm email that left me saddened rather than stressed. My client’s daughter emailed me to inform me that her father had passed away earlier that day.

Because mortality is a factor in most of the cases the clinic takes, I should not have been so shocked to learn of a client’s death. As this clinic specializes in elder law, the clients we represent are largely advanced in age. Many of our clients seek our assistance in end-of-life planning. We also help our clients secure the financial and medical aid they need as they age. The client’s passing was, nonetheless, shocking news.

I regret that I was unable to help my client in any tangible way before his death. The client, a war-time veteran, sought assistance from the clinic in obtaining financial benefits from the VA. These benefits were to be used to pay the veteran’s nursing home bills. Though we determined that he was likely eligible for VA assistance, he died before receiving any such assistance.

Upon receiving the sad news, I responded to my client’s daughter, hopefully conveying my condolences and possible next steps. At the conclusion of our email conversation, the daughter told me that the clinic had been a lifeline for her. Though I was unable to help her father in a concrete way, I am glad the clinic provided some comfort, support, and assistance to our client and his daughter.

As an elder law clinic, we seek to provide legal assistance to seniors in our community. Sometimes, circumstances beyond our control render us unable to achieve our clients’ legal goals. However, I think the clinic may still provide a valuable service if we serve as a lifeline and support system for our clients and their families. This experience has taught me the important non-legal assistance an attorney should give a client. I am grateful to my client and this clinic for teaching me this lesson.


The Executor – An Important Decision for An Important Job

By Tom White, Elder & Disability Law Clinic Student, Spring 2018

One of the more thankless positions a person may find him or herself in is being the Executor (or executrix) of a will. This is not a position that requires any formal training or legal education. However, as complex property issues can arise, the need to consult a lawyer is relatively common.

The role of executor is an awkward one. It demands that you carry out the wishes of a document that you likely had no part in writing, all the while dealing with the personalities of various family members trying to get their hands on their inheritance. Being that this position requires the ability to juggle personalities whilst being studious about dealing with the will’s demands, the selection of a proper executor is incredibly essential.

Many are quick to select close family members or friends as executors. The selection of a family member may seem like the obvious choice to some, and many would not consider any alternative. However, there are probably times when a third party, unrelated to the family, might be in the better position to execute a will properly. I bring this up because I once watched a family member deal with the troubles of being an executor.

The will in question required the selling of a home owned by the decedent before the rest of the assets of the will could be distributed. Unfortunately, the house did not sell quickly, and this executor was left with the task of dealing with both real estate agents and contractors for months. All this time, he was also dealing with mounting pressures from other members named in the will wanting their settlement. These family members used emotional appeals on the executor until he finally fronted the beneficiaries the money out of the decedent’s savings.

This would have been a situation, I believe, in which a third party like a bank or a trust company would have been better suited to deal with the will. A third party will not be as likely to succumb to the emotional pressure of being an executor and handling family members. Meaning, when it comes to selecting an executor, the drafter of the will needs to be honest with himself and ask if he can foresee conflict in which demands will be made that strain the familial balance. If the answer is yes, he should turn to resources like the National Academy of Elder Law Attorneys (naela.org) which has a directory listing qualified attorneys or other organizations who can help in these matters.

Proving an Older Veteran’s Military Service

By Greg Dahl, Elder & Disability Law Clinic Student, Fall 2017

We take time each November 11th to recognize the commitment and sacrifice of the men and women who risked their lives as members of our armed forces. In the spirit of Veteran’s Day, it is worth taking a moment to discuss an obstacle to obtaining veteran’s benefits for older veterans that may be overlooked by those unfamiliar with the process.

It is no secret that veterans of World War II and the Korean War have reached an advanced age. A veteran who was 18 years old in 1946 (the last year of the WWII period recognized by the government) will have turned 89 by the end of this year. A veteran who was 18 in the last year of the Korean War period (1955) will have turned 80 by the end of this year. Veteran’s benefits administered by the US Department of Veterans Affairs (the VA), may be able to help qualifying veterans with some of the medical and financial burdens associated with aging.

A veteran seeking benefits bears the responsibility of proving his or her military service. This preliminary step can sometimes prove more difficult than one would expect. Many veterans have lost their discharge documents in the decades since they received them. In addition, a fire at a government archive in 1973 destroyed the government records for many servicemen and women. As a result, the VA does not have the discharge records of most of the men and women who served in the Army during World War II or the Korean War. Most of the records of Air Force veterans from a comparable period (1947-1960), starting with the last name “Hubbard” and going alphabetically through “Z” were also destroyed. Most records for veterans who served in the Navy, Marine Corps, and Coast Guard during this period survived the fire.

Fortunately, there are ways to prove a veteran’s service to the VA even if the formal records are lost. Assembling any kind of documentation that mentions a person’s service is useful. This may include tax records, medals or other commendations, photos of the veteran in uniform, or newspaper clippings that mention the veteran’s military service.[1] If the veteran served in a National Guard unit, state records may still exist.

Another method is to prepare a “Statement in Support of Claim,[2]” known informally as a “buddy affidavit.” A buddy affidavit is a sworn statement by a person who served with the veteran and who can attest to his military service. In addition, it may be worth checking with the National Archives[3] to request a copy of the veteran’s records, as not all records from this period were destroyed.

Proving a veteran’s military service can be more complicated than one would expect, but it can also be a rewarding way of learning more about a relative’s military service and of developing a deeper appreciation for the men and women who have served our country in the uniformed services.

[1] Ryan Guina. “How to Prove Military Service – Official Military Documents, Forms, and Other Ways to Prove You Served.” https://themilitarywallet.com/prove-military-service/

[2] Family of a Vet.com “What Makes a Good ‘Buddy Letter?’” http://familyofavet.com/good_buddy_letter.html

[3] National Archives. “Request Your Military Service Records Online, by Mail, Or by Fax.” https://www.archives.gov/veterans/military-service-records

Facing Eternity

By Sarah Spencer, Elder & Disability Law Clinic Student, Fall 2017

“Thou know’st ’tis common; all that lives must die,
Passing through nature to eternity.”

Hamlet Act I, scene 2, line 72.

What do we do when it comes time to make a decision that entails facing those things which scare us most? Usually, our first instinct is to just not face it—to not make that decision. We leave those uncomfortable truths for our future selves, saying “not today,” or “I’ll be better equipped to face that down the road.” However, the cost of ignoring those problems, of temporarily soothing our fears, doesn’t fix anything. In fact, it usually just makes those problems worse, looming larger and larger in our imaginations until it robs us of the very peace we’re trying to preserve by ignoring those problems in the first place.

One of the most uncomfortable truths any of us have to face in our lives is the fact that we are mortal. Making provisions for when we leave this life forces us to think about our loved ones in a world without us, which is usually not a pleasant task. Consequently, some people choose not to think about it until it’s too late. Others begin to face this decision but become emotionally overwhelmed—unable to make a choice or commit.

This latter situation is exactly what I experienced with my client, Mrs. Sweet[1]. She has been in the process of drafting her will for over a year now. While she has modest assets, she never seems able to commit to a plan. Perhaps this reflects how a person’s life constantly changes and the difficulty in creating one document to reflect the variety and richness of that. However, I sense that it has more to do with worry—worry over what will become of her children when she’s gone. Worry that she’ll get this big decision wrong.

I used to be like Mrs. Sweet with all my big decisions. But, one of the simplest and most life-changing lessons I’ve learned is that you must force yourself to be brave and tackle things head on. Even if it still turns out a mess, I’m always glad I did. And so should everyone, especially when it comes to that scariest of decisions. Everyone leaves this world at some point, so there’s no use denying it. It’s better to commit to a plan than wind up with no contingencies or control at all. Then when the inevitable happens, we’ll be ready and comforted by the knowledge that things will be done how we would have wanted, easing the burden of our passing for our loved ones.


[1] Pseudonym for client’s actual name.

The Difficult Decision of Long-Term Care

By Sara Sapia, Elder & Disability Law Clinic Student, Fall 2017

As their loved ones age, many people must confront how their parents, grandparents, or partners will continue to be cared for as their physical and mental health declines. According to the Family Caregiver Alliance, approximately 69 percent of people over the age of 65 are expected to develop disabilities before they die, and 68 percent are likely to become unable to perform at least two activities of daily living or become cognitively impaired as a result.[1] So how do you decide what to do as a child, grandchild, or spouse when you witness your loved one’s health deteriorating?

‘Do I put them in a home?’ is one question that often comes to mind. The negative stigmas associated with nursing homes persist, including allegations of abuse, maltreatment, and neglect. On top of that, many people feel a sense of guilt or abandonment when they place their loved one in a nursing home, assuming that by doing so they are ‘giving up’ on them, and therefore often seek to avoid nursing homes altogether. Family dynamics can also come into play here, as a child may have promised his parents that he would never put them in such a home or his parents expressed that they wish to have a family member care for them instead. I must admit that when I think of my own parents I hope to be able to care for them myself into their old age and know I will do everything I can to keep them in a comfortable, safe environment as they grow older. I have also seen them struggle with these same concerns related to their own parents.

Long-term care by a family member, however, is not always possible. Potential caregivers typically have their own families and expenses and may not be financially capable of cutting back on their hours at work, or even quitting their job, to care for an aging family member. In addition, they may have their own chronic health conditions that prevent them from physically caring for someone else. To adapt to the needs of an ever-increasing elderly population, many new caregiving alternatives have been created. These include assisted-living facilities, continuing care retirement communities, in-home care services, and active adult daycare centers, all providing less restrictive means of aid for aging seniors, depending upon their level of disability. These provide families who are faced with aging loved ones options other than total care by a family member or admission to a nursing home to consider when looking for a safe, reliable, and comfortable plan for long-term care.

Because of the varying nature and costs associated with each of these options, it is important for family members to discuss their expectations for long-term care up front and ideally before a loved one’s health has deteriorated to the point where long-term care is necessary. Estate planning documents, such as a healthcare power of attorney and a living will, can also play a key role in these decisions. Ultimately, a person’s long-term care plan is a personal decision to be made by him and those closest to him based on his health, finances, and preferences.

[1] https://www.caregiver.org/selected-long-term-care-statistics

A Simple Question with a Complex Answer: Determining Competency

By Chris Everett, Elder & Disability Law Clinic Student, Fall 2017

The presumption that a person is competent is well settled in the American legal system. However, in elder law, this presumption oftentimes needs to be challenged. Many elder law attorneys deal with clients who seem to be disoriented and uncommunicative, which gives rise to the question of whether or not that client is truly competent enough to be making legal decisions. On its face, competency seems to be a very simple question. Most people see the question as black and white, with an obvious yes or no answer. The reality, however, is something far more complex. Competency exists on a continuum. Clients may have the ability to make some decisions but not others. As such, it becomes difficult for the elder law attorney to determine whether or not their client is truly competent enough for the task at hand.

Thankfully, various ways exist to ensure that the elder law attorney is not mistaking some of the common disabilities of old age with the symptoms of legal incapacity. It is important to structure each interview with a client in an environment that maximizes the capacity of the client. Interviews with the client should be conducted in a stress free environment. For some, this could mean meeting with the client in the comfort of their own home. It is important to speak slowly and succinctly, while at the same time maintaining a level of professionalism that allows the client to feel respected. In addition, meetings should be scheduled during times that are comfortable for the client. Meeting earlier in the day can help to ensure that the client is mentally sharper and more alert, helping to increase the productivity of the meeting.

Attorneys should develop and follow a consistent and deliberate process to check their clients for capacity. Questions to the client should be posed in a way that allows them to respond in depth. This allows attorneys an opportunity to check their client’s ability to articulate reasoning behind his or her decisions, as well as their ability to appreciate the consequences of their decisions. It is important that attorneys are not tricked by slow responses from their clients, or by requests to repeat their questions. A client with a diminished capacity is not necessarily incompetent. On the contrary, clients with diminished capacities often have the ability to understand, think about, and reach conclusions about matters affecting themselves. It is therefore imperative that attorneys take the time to familiarize themselves with the techniques used to determine the level of competency in their clients.

Deeming a client to be incompetent is not a decision that should be made lightly. One consequence of this could be the appointment of a guardian to the client. This appointment would cause the client to lose his or her right to make legally binding decisions, to vote, to own property, and to make medical decisions. In a sense, the appointment of a guardian is one of the most restrictive things that could happen to an individual. With this in mind, an attorney should not find a client incompetent unless it is absolutely necessary. Ultimately, it is this responsibility that makes the techniques and understanding of competency so important for an elder law attorney.

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.

We Care. That’s Why We Must Have The Difficult Conversation

By Kelsey Knitter, Elder & Disability Law Clinic Student, Spring 2017

I came to the Elder and Disability Law Clinic with a unique experience; both of my parents are Elder Law attorneys. I have heard them discussing some of their most difficult cases, cases involving family members fighting over loved ones. I was shocked that family members could be so at odds that they needed to go to court while a parent was dying. I remember thinking how that would never happen in my family because we all love each other and just want what’s best for our parents/grandparents.

However, I have started to learn that in many of these situations, it’s not that one member of the family is acting maliciously (thought that obviously can be the case); instead, both children often care so much for their parents but they sometimes just don’t agree on what is best given the circumstances. As my own grandparents have begun to age, I can see much more clearly how such disagreements can occur.

Another common problem that arises when a family member is dealing with an aging senior is that the senior may become uncooperative and unwilling to compromise. In order to alleviate this tension, it is important to remember that the senior does not want to feel like he is losing control. Approaching this conversation as a discussion about what the senior wants is one way to hopefully avoid conflict. Additionally, having this conversation early, while the senior is still competent, is all the more important for avoiding such a tension.

My mother and uncle recently had this conversation with their own parents, my grandparents. It was by no means easy to bring up. It is hard to say to a parent, what do you want me to do if you can’t take care of yourself?  However, at the same time, this is extremely important to determine what would be best for my grandparents were they to become incapacitated. It is a harsh reality, but you never know what may happen. For instance, my grandpa slipped on ice the other day and took a rough fall.  Fortunately, he was not seriously injured. However, had he broken a hip, he may have needed some long-term care.

This is why having that difficult conversation is vital. It’s not only important for the seniors to assert their wishes, but also for other family members to understand those wishes and be on the same page when carrying them out. It is a necessary step to avoiding misunderstandings or disagreements amongst siblings or spouses, which is important for avoiding unnecessary and expensive litigation. Having this conversation with an aging loved one is an important step in EVERY family in order to ensure any easier transition as a parent/grandparent begins to age.



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