Choosing an elder law lawyer

There comes a time when a family must consult a lawyer about elder law issues. Some people are lucky enough to have a friend or co-worker who has had a positive experience and can recommend and attorney in the elder law field. Often, however, that is not the case, and the family faces the daunting task of souring the Yellow Pages and the internet for an appropriate person.

We all know that the Yellow Pages contain advertising. Lawyers buy ads and hope the amount of business the ads bring in will be worth the monthly cost. Virtually all third party websites that provide information about elder law lawyers are the same. Lawyers pay to have their names listed. If you go to the AARP web site looking for an attorney you will find a list of attorney's who have paid to be on the list. In the case of the AARP, it costs a lot. The same applies to ElderLaw Answers, Oregon Elder Law Attorneys, NOLO Press, and many many more. If there is a list of lawyers on the web, odds are that the lawyers paid to get on it.


Most of the web sites listing lawyers shy away from rating them. That is not the case with Avvo. Avvo lists all lawyers and lets us claim our listing and fill in the blanks about our experience and specialties. It also gives lawyers a ranking based upon some mathematical formula. Due to my colorful history with the Oregon State Bar--a history told here and here and probably lots of other places--I am ranked at the bottom with the warning "extreme caution." Who knows, Avvo may be right--after all they have math on their side. On the same page as my abysmal ranking is an ad for another lawyer in my neighborhood. He gets his picture on my page because he paid for an upgrade. At the end of the day, it is still all about advertising.


You might look for a lawyer who belongs to the appropriate organizations. Many of us elder law lawyers belong to the National Academy of Elder Law Attorneys. I belong to NAELA. I read the newsletters and the journals they send me. I wouldn't have to do those things to belong. I could just send in the money once a year and the organization would be quite happy take it and list me as a member. I belong to the Guardian/Conservator Association of Oregon, the Oregon Gerontological Association, the Elder Law Section of the Oregon State Bar and the East County Alano Club. Does belonging to these organizations make me a better elder law lawyer? Probably. But not that much better. What counts is what we do at work, not what we do in our spare time.


Here is my theory. Find some elder law lawyers in your neighborhood and look at their web pages. Get a feel for them. Some folks like a firm--it gives them a sense of security to see several lawyers and a lot of staff. Other people are more at home with a sole practitioner or a couple of partners. These folks like the intimacy of the small practice. Then meet with the lawyer and see if you like him or her. There are a million lawyers; there is no excuse for having one you don't like. Talk about your problem and see if you are comfortable with both the legal plan the lawyer devises and the cost. If it doesn't feel right, get out and try somebody else.


If you follow my plan, chances are you will be okay. Law ain't rocket science. Most lawyers are going to look at your case and come up with the same answer. People win cases because they have good cases, not because they have good lawyers. You don't want a lawyer who can't find the court house, but in the elder law world, you probably don't need Clarence Darrow either.

Oregon Elder Law: What is a guardianship and what must I do to get a guardian appointed in Oregon.

The Oregon courts will appoint a guardian when a cognitively impaired elder is making life style choices that put him or her in physical danger. Often a guardian is appointed to place an impaired elder in a long term care facility. The appointment of a guardian is an even more severe infringement on personal rights than the appointment of a conservator. A conservator controls only money. A guardian can agree to medical procedures and determine where the elder will live. Thus, the protections for the elder in a guardianship proceeding are even greater than in a conservatorship.

To appoint a guardian, a court must have convincing evidence that the elder's ability to evaluate information is so impaired that the elder cannot manage nutrition, personal hygiene and other basic health care needs. The court must also find that without the appointment of a guardian serious injury or death is likely to result. Thus, the need for a guardian is partially dependent upon the situation in which the elder lives. The court is much more likely to find a threat of serious injury in the cases of an elder living alone than in cases of an elder living among family or in a long term care center. As in a proceeding for a conservator, the elder has the right to copies of the documents filed with the court, has a right to object, and the right to an attorney.

When a family member seeks the appointment of a guardian, the court will appoint what is called a "visitor," to talk to the elder, his family and his care givers. The visitor is the eyes and the ears of the court. The visitor will interview the interested parties and report to the judge, giving his or her opinion as to whether a guardianship is warranted and whether the person seeking to be guardian is an appropriate surrogate decision maker. The costs of the visitor are paid by the person filing the guardianship papers.

If no one files an objection and the court visitor reports that the the proposed guardian in an appropriate choice, the court may order a guardianship opened without a court hearing. If the elder or other family members object, there may have to be a hearing in which evidence is presented by both sides. If a guardian is appointed, the guardian will be required to report once a year to the court on the condition of the elder.

What is a conservatorship in Oregon?

When there is convincing evidence that an impaired elder can no longer manage money, a family member may apply to the court to have a conservator appointed. The court order appointing the conservator will be written to address the specific financial problems facing the elder. In some cases, that will mean that the conservator will completely take control of the elder's money. In other situations, the conservatorship may be more limited, allowing the elder the dignity of controlling some money but restricting the elder's ability to transfer real estate or access investment accounts. After being appointed, the conservator must collect, protect and spend funds for the elder's benefit.


The person seeking to be appointed conservator must prove to the court that he or she has the skills to manage money. The conservator must also post a bond sufficient to guarantee that the elder's money remains safe. In some cases the requirement of a bond means that even well intentioned and honest family members cannot qualify to be a conservator. In these cases, the court will appoint a professional conservator to do the job.


A court order appointing a conservator denies an elder important rights that most of us take for granted. Thus, the elder is entitled to see all the papers filed in court and is given the opportunity to object. Copies of the documents prepared by the lawyer must also be given to the elder's closest relatives so that they too can object. If the elder objects, he or she can hire an attorney and in some cases the court will appoint an attorney. The elder has the right to make the relative who started the court proceeding prove the case for appointment with clear and convincing evidence.


If the court appoints a conservator, the person appointed must once a year provide the court with a thorough accounting of all money received by the elder and all money spent. Most conservators keep an attorney retained for as long as the conservatorship lasts. If the elder improves so that he or she is once again able to manage money, he or she may ask that the conservatorship terminate. If the elder dies while under a conservatorship, the money in the hands of the conservator is distributed according to the elder's estate plan.

Benefits and Drawbacks of a Power of Attorney

BENEFIT OF THE POWER OF ATTORNEY

A power of attorney is the least expensive and least complex of the methods for appointing a surrogate decision maker. Although the law allows the agent to enter financial transactions for the principal, the law requires that the power be used only for the benefit of the impaired person. Terms contained in powers of attorney vary widely, but normally they do not permit the agent to give away the principal's money or use money for the agent's own benefit. Financial powers of attorney are commonly used by family members to contract for long term care, pay the elder's bills, and apply for government benefits.

DRAWBACKS OF THE POWER OF

ATTORNEY

In elder care the power of attorney has three serious drawbacks. First, it must be signed when the impaired person still has the intellectual capacity to understand the document's terms and consequences. Often, the elder has declined so far before the problem is recognized that it is already too late to get one signed. Second, no law requires banks and other financial institutions to recognize the validity of the document. Banks, stock brokers and others in the financial world often refuse to recognize a power of attorney unless it is on their standard form or signed in their offices. If this happens, the agent may not be able to get access to the impaired persons money in order to use it for health care. The third drawback is that there is no oversight of the agent. Elder financial abuse is a serious problem. Law enforcement in Oregon has thousands of cases in which powers of attorney have been used by unscrupulous relatives to misappropriate the life savings of an elderly family member.

The suffering of the dutiful daughter

Nursing homes, adult foster homes, and assisted living arrangements are the public face of long term care for the elderly. In the real world, however, most long term care is performed by families. When there are siblings charged with taking care of a parent the duty usually falls upon the eldest daughter. This is statistically true across cultures and across generations. It is true even when a younger daughter or a son might be the more qualified care giver, a fact that often leads to strife among the siblings. In my own family, I have seen a younger daughter chafe under the injustice of seeing her parent and the other children all looking to the older sister for leadership regarding care issues, ignoring the superior capabilities of the younger. It isn't fair, and it isn't likely to change.

More often than not it is the oldest daughter who comes to me to say that the family can no longer handle the pressures of providing long term care. The crises is often the direct result of  increasing levels of dementia in the elder--loss of cognitive ability that makes the elder increasingly incapable of cooperating in her own care. In these cases the daughter faces asking the court to appoint her conservator to take control of the parent's money and use it for the costs of professional long term care. When I explain the process for becoming a conservator, I must also explain the curse of the dutiful daughter.

It is not unusual, I  explain, that the one person willing to stand up and protect the elder ends up hated by everybody. A court proceeding is public, intrusive and embarrassing for the elder. The dutiful daughter--the only member of the family willing to step up and do the right thing--ends up hated by the parent because he or she cannot see through the fog of dementia that the proceeding is meant to help. Other family members turn on the dutiful daughter as they see the parent's money being locked away to be used only for the long term care needs of the elder. Family members who have been using that money as if  it were their own will not be above holding a grudge against the person responsible for bringing the gravy train to a stop.

Relatives, whether or not they be dutiful oldest daughters, seldom refuse to proceed with court action out of fear of the curse, but it is important that they be steeled for it before we sign the papers.

How useful is a power of attorney in real life?

Most people include a power of attorney as part of their estate planning packet. A power of attorney prepares a person for disability by nominating an agent to take care of financial matters if the principal (the person signing the power of attorney) becomes unable to manage his or her own affairs. I have a power of attorney naming my wife as my agent to take care of my finances if I am too ill to take care of them myself. My elderly mother has signed a power of attorney naming me as her agent in case she becomes disabled and can no longer handle her financial affairs. If the power of attorney works as planned, I will step in when my mother can no longer manage her money and I will make the financial decisions she would have made if she had not become disabled. The power of attorney, a relatively inexpensive document, is designed to save a family the stress and cost of going to court to have a formal conservator appointed. But does this work?

I have struggled with explaining how the power of attorney operates in the real world. I used to tell people that it works on a sliding scale. At the low end of the scale, a power of attorney works nearly every time. In the middle it works about half the time, and at the high end it seldom works. Social service agencies are at the low end. If you are the child of a Medicaid applicant with a power of attorney from your parent, the agency will probably give the document only a passing glance before accepting you as the agent. One of the reasons for this liberal attitude is that you are trying to get money for the elder, not from the elder. Society is not going to leave needy elders homeless, because of some defect in the language of a power of attorney.

I tell people that banks are somewhere in the middle of the scale. If I walk into a bank holding a power of attorney signed by my mother and want to take money from her accounts, my chances of being successful are about fifty-fifty. Banks are unpredictable. One day I might get the money with no problem. Another day, even at the same branch of the same bank, the manager might tell me they have to send a power of attorney to the legal department for analysis. Power of attorneys that go to legal departments often disappear there, never to be seen again.

At the high end of the scale sit brokerages. The chances of me getting into my mother's brokerage account with a power of attorney written by a local lawyer (or worse, a form from Office Depot) are between slim and none. If my mother wanted me to have a power of attorney that would work at her brokerage, she should have signed one of their forms, in their office, in front of their notary. I can't say a brokerage will never honor an outside power of attorney. I will promise, however, that the document will spend a fair amount of time being examined by the brokerage's lawyers before it is honored.

I knew this was how power of attorneys worked, but had a hard time explaining why. Then a Corvallis lawyer named Steven Heinrich put it in a way that I think makes it clear. He once pointed out that a power of attorney is an invitation to agencies, banks, and brokerages to accept the agent as authorized to handle the assets of the principal. Some institutions accept the invitation. Others will not. Government agencies are inclined to accept the invitation; banks accept it now and than; and brokerages most often decline. In the case of my mother and me, neither of us can force her bank or anyone else to accept the power of attorney. She agreed that I can act for her when she signed the document, but that is only half the equation. Only when the bank or other third party agrees to honor her wishes does the power of attorney become truly effective.

So what does this mean to someone planning for disability or worried about the impending disability of a parent. The short answer is that one should not put too much reliance on a power of attorney. It is like a seat belt. It may save your life in certain kinds of crashes, but having it on will not protect you from the consequences of your reckless driving. Planning for disability and death requires a plan, not a document. The power of attorney can be part of a plan, but not a substitute for it.