The Practice of Elder Law

William Mitchell Law Review Volume 29 | Issue 1 2002 The Practice of Elder Law Stuart C. Bear Follow this and additional works at: http://open.mitchellhamline.edu/wmlr Recommended Citation Bear, Stuart C. (2002) "The Practice of Elder Law," William Mitchell Law Review: Vol. 29: Iss. 1, Article 1. Available at: http://open.mitchellhamline.edu/wmlr/vol29/iss1/1 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in William Mitchell Law Review by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact . © Mitchell Hamline School of Law Article 1 Bear: The Practice of Elder Law BEAR FORMATTED 8-26-02.DOC 9/6/2002 4:24 PM THE PRACTICE OF ELDER LAW STUART C. BEAR† “Cast me not off in the time of old age; when my strength faileth, foresake me not.” –Psalms 71:9 (Jewish Publication Society). I. II. III. IV. V. INTRODUCTION .......................................................................1 THE PRACTICE OF E LDER LAW .................................................4 CONFLICT OF INTEREST ...........................................................6 LAWYER AS AMBASSADOR TO PRACTICE OF LAW AND LEGAL SYSTEM .........................................................................7 CONCLUSION ...........................................................................8 I. INTRODUCTION It’s Monday morning. I arrive at the office a little later than I would have liked, because I have just dropped my children off at school. Already, my client voice message light is on. I pick up the message, and the message is from a responsible daughter, calling on behalf of her mother. I note the quiver in her voice. Responsible Daughter reports that over the weekend, Mom, a widow, slipped and fell and was found unconscious in her home. She was rushed to the hospital where her condition has now stabilized. Mom broke her hip and will need convalescent care, most likely in a nursing home facility. Responsible Daughter posed myriad questions: What type of care is available? How much is it going to cost? How can Responsible Daughter be appointed Mom’s legal authority to make financial and medical decisions? How soon 1 can we meet? How much is it going to cost for my services? † Mr. Bear is a 1985 graduate of William Mitchell College of Law. He is a shareholder with the Twin Cities law firm of Chestnut & Cambronne, P.A. He is the Chair of the Elder Law Section of the Minnesota State Bar Association. 1. See M INN. R. PROF. C. 1.5. “A lawyer’s fees shall be reasonable,” as determined by a number of factors, including time and labor required. . . the fee customarily charged in the locality 1 Published by Mitchell Hamline Open Access, 2002 1 William Mitchell Law Review, Vol. 29, Iss. 1 [2002], Art. 1 BEAR FORMATTED 8-26-02.DOC 2 WILLIAM MITCHELL LAW REVIEW 9/6/2002 4:24 PM [Vol. 29:1 Responsible Daughter informs me that this is the first time she has been confronted with anything like this type of situation. In fact, neither she nor her Mom have ever had any contact with a lawyer or the legal system. I ask Responsible Daughter a number of questions, ranging from the prognosis for Mom’s medical condition, to Responsible Daughter’s knowledge of Mom’s legal affairs—such as whether Mom has a Will, a Durable Financial Power of Attorney or a Health Care Directive—and Responsible Daughter’s knowledge of Mom’s assets, income and expenses. Not surprisingly, Responsible Daughter has little direct knowledge of these matters. As for Mom’s prognosis, it is too early to tell whether her care in a nursing home facility will be of a temporary or a permanent nature. Responsible Daughter confides that Mom has been “slipping” during the past few months, becoming somewhat forgetful of names and events. Responsible Daughter has also found spoiled food in Mom’s refrigerator and there has been a concern about whether Mom is eating an appropriate balanced diet. As for the legal documents and Mom’s finances, this subject has been taboo— off limits. For the past six months, Responsible Daughter has tried to bring up the issue of finances, but Mom has not been forthcoming with sharing any financial information. Responsible Daughter has not pushed the issue for fear that Mom would perceive her as greedy, money hungry, and only interested in an inheritance. We ultimately decide to meet the next day, at Mom’s bedside in the hospital. The meeting is attended by Mom, Responsible Daughter, two responsible sons and the spouse of one son. Two other children are not at the meeting, because one of the children, a daughter, lives out of state and the other child, a son, has been estranged from the family for a number of years. In all, the six of us meet in a semi-private room at the hospital around Mom’s hospital bed to discuss issues of importance to Mom and the other for similar legal services, the amount involved and the results obtained, the time limitation imposed by the client or the circumstances, the nature and length of the professional relationship with the client, [and] the experience, reputation and ability of the lawyer or lawyers performing the services. Id. 1.5(a). Elder Law lawyers typically charge for their services based upon the lawyer’s usual and customary hourly rate. Some services, such as providing specific types of legal documents, like a Durable Financial Power of Attorney or a Health Care Directive, are often billed on a fixed-fee basis. http://open.mitchellhamline.edu/wmlr/vol29/iss1/1 2 Bear: The Practice of Elder Law BEAR FORMATTED 8-26-02.DOC 2002] THE PRACTICE OF ELDER LAW 9/6/2002 4:24 PM 3 family members. Turning to Mom and looking directly at her, I ask her what she wants. What are her goals and objectives? She tells me and her children that she does not want to be a burden to anyone. She wants to remain as independent as possible. She wants her children, when the time comes, to be able to step in and handle her financial affairs and medical affairs without problems, and she does not want to outlive her money so she becomes destitute. The children all nod in agreement, as if to say that this is what they want too. How did I get here? Twenty years ago when I enrolled at William Mitchell College of Law, I envisioned in my mind’s eye practicing law in the traditional fashion. The fashion that came to mind was from the attorneys I saw on TV, like Perry Mason; or the attorneys I saw in the movies, like Paul Newman in The Verdict; or even the attorneys I knew when I was growing up in a small town in Northern Wisconsin—the all knowing, general practice attorneys with Ward Cleaver-like sound judgment and with an equally impressive booming, resonant voice. So what happened? After graduating from William Mitchell in 1985, I was eager to learn about many different areas of the law. I joined a private law firm, and ultimately joined the firm where (...truncated)