Wills and Estates

Elder law: How to become a prudent practitioner – and improve your client outcomes

Elder law is an area brimming with opportunity. But it also requires a nuanced understanding of the ethics and risks involved in working with older clients.

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In this article, we explore what elder law is all about – and the strategies you need to navigate this delicate area of practice. (Our thanks to elder law speaker and Adjunct Associate Professor at UNE Sue Field for her insights.)

 

What is elder law – and what does it cover?


Anyone unfamiliar with the area might infer from the term ‘elder law’ that the law might work differently where older people are concerned.

 

But this is not the case.

“In its simplest form, elder law is just law as it affects older people,” says Sue Field.

 

“The law is no different for them than it is for younger people. However, as we age, some issues start to become more important.”

 

In particular, these four questions become pressing as people get older:

  • Where am I going to live?
  • Who am I going to live with?
  • What am I going to live on?
  • Who can make decisions for me if I can’t make them for myself?


These are large life decisions that we often don’t want to contemplate – decisions that become even more complex by potential mental incapacity or cognitive decline.

 

And understandably, clients’ family members often want a say in these matters as well.

 

That’s why elder law is not just about the older person. It’s about families. It’s about decision-making and accommodation issues.

 

And unfortunately, it’s also about elder abuse, an increasingly rife issue in our community.


Elder abuse: a dark but prevalent issue


In 2021, the Australian Institute of Family Studies published a research report finding that elder abuse affects up to 14.8% of Australians over 65 every year.

And sadly, the perpetrators are often family members.

Elder abuse takes many forms. It might look like abandonment or neglect, wherein a family member leaves an older person to their own devices when they’re in dire need of help.

Or the abuse might be more direct, such as physical, verbal or sexual abuse. Not to mention the kind of emotional abuse that can do lasting damage.

And then there’s financial abuse. Here an older person might be coerced into parting with their money while having their autonomy removed, so they’re unable to make their own financial decisions.

Elder abuse is another topic that is not pleasant to talk or think about. But it’s a stark reality that elder law practitioners need to be alert to.


Four strategies to keep in your back pocket


To succeed in elder law, you need to be observant, discerning and attuned to your instincts (much like in any other area of practice).

It’s essential that you not only consider your professional success, but also the wellbeing of your clients. Older people are often in vulnerable positions; that’s why being conscientious and compassionate is also of utmost importance.

Here are four strategies to take on board when working with clients.

 

1. Go with your gut

 

Cognitive decline is a very real concern in elder law. It can affect a client’s decision-making capacity and make them more vulnerable to abuse.

That’s why you need to be alert to red flags that could indicate mental incapacity.

This means being mindful of your first impressions when you meet an older client. If something feels off, don’t dismiss that gut instinct.

Even the way they are dressed could indicate that something is amiss. For example, if it’s a stinking hot day you might want to question why they’re rugged up in winter gear.

Always pay attention to your instincts.

 

2. Interview clients by themselves

 

Unsurprisingly, clients who are being abused are unlikely to tell anyone upfront – including their lawyers. But it’s easier to trust that your client is being honest if you speak one-on-one.

Interviewing them alone means you’re getting their story straight from them, instead of from a family member. But that’s not to say you should always treat family members as suspect.

“There are happy families. But happy families don’t come into your office to tell you how happy they are. They come to you when something’s wrong,” says Sue.

It’s always more prudent to proceed with caution.

 

3. Build a rapport

 

The things clients tell you in candid conversation can be invaluable.

Being warm, friendly and conversational with client encourages them to relax. And that allows you to develop a genuine connection. It also gives you the chance to draw out specific information.

“For example, say you asked your client how they travelled to your office that day. If they say ‘My son flew me in’, but you know they live three suburbs away, that might be a red flag,” says Sue.

 

4. Communicate clearly – and don’t assume

 

Many laypeople don’t understand everyday legal terms. The same applies to older clients.

So be sure to give a clear, comprehensive, but simple explanation of what you’re doing.

“The overwhelming majority of people think that a power of attorney, an enduring guardianship, an advance care directive and a will are all interchangeable,” says Sue.

That can lead to some serious confusion – and some serious problems.

“A client might think that they don’t need a power of attorney if they have a will,” says Sue.

The takeaway? Use open-ended questions and ask what their understanding is of certain concepts.

Want to learn even more about the ethics and opportunities of elder law?

 

The College of Law’s annual program Elder law – abuse, risk and ethics with older ultra-high net worth clients is back in 2022. And it’s now open for enrolment.

 

Learn from Sue Field and other elder law experts in a series of seminars on 3 March 2022.