William & Mary Elder and Disability Law Clinic

Serving Seniors in the Greater Peninsula Area

Category: Uncategorized (page 1 of 4)

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.



Accounting for the Varying Degrees of Incapacity— the Limited Guardianship

By Michelle Chionchio, Elder & Disability Law Clinic Student, Spring 2017

Our “legal, social and economic worlds” assume that adult individuals are able to make responsible decisions on behalf of themselves. That is, all adults are presumed to have legal capacity unless a court with proper jurisdiction deems otherwise. An “incapacitated person” is an individual found by the court to lack the mental and/or physical capacity to care for himself, including his inability to satisfy his basic health, safety, care, education, habilitation, and therapeutic needs without assistance. In such a case, a court appointed guardian may be appropriate to prevent the incapacitated person from victimization and to ensure that his best interests are accounted for.

A “guardian” stands in a fiduciary relationship with the incapacitated person, owing him the fiduciary duties of care, loyalty, and good faith. Because a guardian must act in the incapacitated person’s best interests, a guardianship may be full, limited, or temporary, depending upon the individual’s level of capacity. This is because capacity is not a “light switch”—there are shades of grey and varying degrees of capacity, which call for partial substitute decision making. That is, where an individual’s loss of capacity is not complete, the guardian’s powers should be “limited” to address solely the needs of the individual, so as not to unnecessarily restrict his autonomy. For example, if an individual’s incapacity prevents him from making major health care decisions, but he is otherwise capable of caring for himself on a daily basis, the court may appoint a limited guardian solely to make such health care decisions, leaving all other decisions up to the discretion of the incapacitated person.

“Full guardianships” are appropriate in instances where an individual’s loss of capacity is complete (that is, where an individual is incapable of making all personal care decisions for himself), but should be pursued as a last resort. Where an individual enjoys some capacity, a less restrictive method, such as the “limited guardianship,” should be used to provide the needed protections. In theory, limited guardianships recognize that the appointment of a guardian is a double-edged sword—although beneficial to the incapacitated person, it results in a severe loss of autonomy and independence. Thus, limited guardianships help to lessen the blow by curbing the infringement and intrusion into the incapacitated individual’s life. Yet, despite its apparent advantages, families are sometimes opposed to limited guardianships believing that it is “not feasible to detail the contours of the incapacity and [to] create an appropriate, individualized guardianship.” However, this belief is misguided—a medical evaluation helps to determine the degree of capacity, and a well drafted petition will outline all of the rights the incapacitated individual will retain. If the individual’s capacity should change over time, the guardian’s power may be increased or decreased as appropriate.

Learning and Growing from Loss

By Megan Watson, Elder & Disability Law Clinic Student, Spring 2017

My paternal grandfather “Papa” passed away in November 2010. The last year and a half of his life was spent in an institution where he received care from competent and sympathetic nurses and where my grandmother visited him daily. When my grandfather was placed into assisted living following a stroke, my dad and I began taking road-trips to see him every month.  It became a sort of tradition for the two of us.  I grew up in the Dallas-Fort Worth area of Texas, about seven hours away from where my grandparents lived in southeast Kansas. Once a month we would load up the car with snacks and gas and make the seven hour trip to Kansas. Seven hours in the car might not sound that great, but we always had a good time together. Along with eating lots of junk food we listened to the Radio Classics channel on XM and talked, and talked. My dad would often tell me stories about his childhood and about Papa.

We always brought Papa Lindor Truffles when we visited—between us, my aunt, and my grandmother I knew he never lacked for sweets and junk food. At first, he didn’t seem all that different to me. He was the same Papa I knew, maybe a little weaker. However, over time I began to notice the changes. He stopped being so responsive to us when we visited, and he was more confused about who we were and where he was. He was eventually moved to a nursing home, where he spent the last two months of his life.

When he died, it wasn’t all that unexpected. I last saw him on Friday of my Thanksgiving break, and he died the following Tuesday. That week following his death was hectic, as those weeks often are.  It was an odd feeling: just like that, my grandfather was no longer here. I had just seen him, and now he wasn’t here.

From that experience, I saw what it is like to lose a parent.  I saw my dad struggle to watch his father slip further and further away. I know it must have been hard for my dad to see Papa like that—to see a once strong and capable man be slowly conquered by his own body and mind. My dad treated my grandfather, his dad, with dignity, kindness, and gentleness throughout his last months. Month after month he dutifully made the trip to Kansas to spend a couple of days with his father.

I am grateful for the time that I spent with Papa, who has been gone now for almost six years. I am grateful for all those road-trips and all those truffles. But mainly, I am grateful for the time that I spent with my dad.  By traveling with him to Kansas every month to see Papa, I shared a special and memorable experience with him. By watching my dad on those trips I learned how to prepare my heart for loss, how to treat my loved ones with dignity when they need and deserve it most, and how to cherish those final days.

We are so careful to prepare our bank accounts and our estates for loss, but let’s remember to prepare our hearts as well, and be sure to cherish the time we have with those we love.

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