Monday, January 9, 2017

Is it ethical for an Elder Law Attorney to have his fees paid by a client’s daughter, while preparing documents that benefit that daughter?

Today’s Elder Care Matters Q&A discusses ethical behavior of Elder Law Attorneys


Question:  Is it ethical for an Elder Law Attorney to have his fees paid by a client’s daughter, while preparing documents that benefit that daughter: I found out that my sister is paying all of my dad’s legal fees, for an attorney to prepare documents for her to buy property from him at a very discounted amount, and also created an assignment of claims for her to sue another family member on my dad’s behalf, where she would be the one to benefit the most if they win.

My dad is 77 years old, in a rest home, and has signs of dementia. My dad told us she is paying “all” of the lawyers fees. 


Answer: This is a very complex issue that is not uncommon for Attorneys practicing in the area of Elder Law. Frequently a large portion of the interaction about an elderly Client’s matters are handled by a designated child or third party. This is just the reality of dealing with someone who has failed to plan properly and no longer has the energy or physical ability to actively participate in every step of the process. The payment of legal fees for someone else is also not uncommon. Children frequently pay for the planning and documents for their elderly parents because they are the ones who will be left to deal with the problems.


The question implies possible lack of capacity because he is 77 and showing signs of dementia. First capacity is generally a legal determination not a medical one, whether legal capacity exists depends also upon what they are doing, as there are many forms of capacity. Age or a diagnosis of an illness do NOT establish lack of capacity. Each type of legal capacity has set elements which must be met to determine capacity.


The disparity in treatment in types and amounts of bequests is also very common especially with the elderly. Unlike a younger couple who make equal distributions, the elderly frequently change that division. Whether it is because one child has spoken to them in 10 years, one child has been using them as the bank forever, one child loves them but sees them infrequently because they live far away, or one child lives nearby and does their shopping, takes them to all their doctor visits, helps them deal with matters they no longer wish to do; there are many reasons for an unbalanced division.


In my office, in most types of cases we make it clear from day 1 that we represent the senior not the children. As a matter of course, my office takes precautions to prevent actual or the appearance of undue influence or lack of capacity. So if the senior proposes a radical shift from prior plans, has received a diagnosis of dementia or other illness or shows signs of loss of cognitive ability, or if the family relation is volatile, then we provide letters for the senior’s physician to complete where the physician is required to give an opinion on the senior in regard to each of the required elements of capacity. At the time of the first meeting we always spend a good portion of the meeting with just the senior, and the attorney and a third member of the firm’s staff will take down notes and observations. At that point we asks questions designed to find factors suggesting potential undue influence, lack of capacity or a variance or uncertainty in regard to the senior’s distributive plan.


If we are comfortable that the senior has capacity and the plan presented is what the senior desires, then we will go forward with the plan but will also include specific separate written acknowledgements of any actual or appearance of conflict of interest, undue influence or lack of capacity which must be signed by the senior, other relevant family members, and usually a member of my firm.


So while on the face of it your facts appear to suggest some undue influence by your sister, I would talk to her or to your father and discuss your concerns. Perhaps the Attorney is skilled in the area and has taken proper safeguards to make sure the plan is what your father wants and is not being controlled by your sister. If you cannot resolve it directly, then you should immediately retain an experienced Elder Law Attorney to assist you in determining and implementing the appropriate action whether it is an out of Court resolution or to bring an emergency guardianship proceeding to prevent your sister from continuing any undue influence and to have the Court determine any document prepared to be of no effect. If there is evidence indicating that the prior Attorney knowingly assisted your sister in any improper conduct, then file the appropriate complaint before your State Attorney ethics Board.


Today’s Answer was provided by James C. Siebert, Esq., in Arlington Heights, Illinois.  Attorney Siebert is a Partner Member in the National ElderCare Matters Alliance.


21 “Mobile Friendly” Elder Care / Senior Care Directories


If you need help in planning for and/or dealing with this issue or with any Elder Care / Senior Care matter, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.



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Is it ethical for an Elder Law Attorney to have his fees paid by a client’s daughter, while preparing documents that benefit that daughter?

Wednesday, January 4, 2017

THE TOP 10 LEGAL DOCUMENTS EVERYONE NEEDS

This week’s article about Legal Documents was written by Debra K. Schuster, M.H.A., J.D., from St. Louis, Missouri.


Attorney Schuster is a Partner member of the national ElderCare Matters Alliance.




Everyone hates going to the dentist. However, if you don’t go, bad things can happen that may have been prevented if you had gone. The same is true with having legal documents created. You may say to yourself, “Well, I see your point, but I can go on the internet and create documents for myself using one of the do-it-yourself legal websites that are a lot less expensive (and don’t require an appointment) than what a lawyer will charge me.


Ok. But would you do your own dental work?


Now that this is out of the way, there are 10 legal documents that all adults (people over the age of 18) need.


Drum Roll Please:


  1. Durable Power of Attorney for Health Care. This document allows you to name who you want to make health care decisions for you when you are unable to do so for yourself. (During surgery, if you have an incapacitating illness, are unconscious from an accident or traumatic incident)

  2. Living Will. This documents stands on its own, in that it expresses your end-of-life treatment wishes to whatever health care provider (hospital, doctor, etc) reads it. You can state that you want all, some or no artificial means of maintaining your life (i.e., ventilator, CPR, dialysis, surgery, etc) when you are at the end of your life.

  3. Financial Durable Power of Attorney. This documents allows you to appoint who you want to make financial decisions for you (pay bills, enter into contracts for goods and services for you, handle your insurance and all assets you own) if you are determined by your doctor to be unable to handle your financial decisions yourself. VERY IMPORTANT NOTE: Choose a person who is financially secure and responsible to serve in this role. It is very tempting to someone who is not financially stable to dip into your money (“I am just borrowing this money – I’ll pay it back) at a time when every cent should be used for your care.

  4. Beneficiary Deed. If you own real estate, you should have this type of deed created to name who you want to inherit your real estate (home, timeshare, vacation home, empty lot) when you die. If you do not have a beneficiary deed (or your property is not held in a trust), it will end up in probate.

  5. Beneficiary designations. ON EVERYTHING – life insurance, money market accounts, IRAs, 401K and other retirement accounts, stocks, bonds, etc.

  6. HIPAA authorization. This is the form allows you to name who you want to be able to contact your doctor, hospital, any health care provider to obtain information and discuss your care when you are still making your own health care decisions (for example, if you have just had a root canal, if your adult child wants to call your dentist to request a prescription for pain medication)

  7. POD and TOD designations. Banks allow you to make Pay Upon Death designations on your checking and savings accounts with a Pay Upon Death (POD) card naming who you want to inherit the account balance when you die; The Department of Motor Vehicles has a Transfer Upon Death form (TOD) to enable you to name who you want to inherit your vehicle when you die.

  8. Digital Asset Inventory. You should create and keep an up-to-date a list of ALL on-line accounts, reward programs, passwords, financial and bill pay sites, social media, professional organization profiles, etc. to enable your family to manage your on-line presence when you are incapacitated and die.

  9. Last Will and Testament. This is a document that allows you to name who you want to handle your affairs after you die (your “Personal Representative”) and to explain how you want your assets distributed after you die. A WILL DOES NOT KEEP ASSETS OUT OF PROBATE – YOU MUST MAKE BENEFICIARY, TOD AND POD DESIGNATIONS ON EVERYTHING!

  10. Personal Property Memorandum. This is a legal document you CAN create yourself that lists personal, non-monetary, sentimental or family heirlooms you want to specifically pass to identified individuals when you die. This list should be attached to your Last Will and Testament.

(11. I know I said 10, but there is a #11 – a Trust. There are many different types of trusts with varying uses, but the most common type of trust is the Revocable Living Trust that allows you to title almost all of your assets in the name of your trust (other than IRAs, retirement accounts and bonds) so these assets will be handled by the person you name as Trustee according to the instructions in your trust. Not everyone needs a trust – so long as they make beneficiary designations on everything. However, when properly funded and handled, a trust keeps all of your assets out of probate and allows you to be as creative and detailed as you wish regarding when and how you want your property distributed after you die (for example, to delay when an 18-year-old can receive a large inheritance).


So, go see your dentist and a lawyer now to have these documents prepared to make sure you are ready if/when you need to use them.



21 “Mobile Friendly” Elder Care / Senior Care Directories


If you need help in planning for and/or dealing with this Elder Care Matter or with any Elder Care / Senior Care issue, you can find the professional help you need in one of the following 21Mobile Friendly” Elder Care / Senior Care Directories. These Elder Care / Senior Care – specific Directories are sponsored by the National ElderCare Matters Alliance, an organization of thousands of America’s TOP Elder Care / Senior Care Professsionals who help families plan for and deal with a wide range of Elder Care Matters.


  1. ElderCareMatters.com

  2. ElderCareMattersBlog.com

  3. ElderCareWebsites.com

  4. ElderCareAnswers.us

  5. ElderCareArticles.us

  6. ElderCareProfessionals.us

  7. ElderLawAttorneys.us

  8. EstatePlanningAttorneys.us

  9. FindDailyMoneyManagers.net

  10. FindElderCareMediators.net

  11. FindElderLawAttorneys.net

  12. FindEstatePlanningAttorneys.net

  13. FindGeriatricCareManagers.net

  14. FindHomeCareProviders.net

  15. FindLongTermCareInsurance.net

  16. FindMedicaidAttorneys.net

  17. FindProbateAttorneys.net

  18. FindSeniorLivingCommunities.net

  19. FindSeniorMoveManagers.net

  20. FindSpecialNeedsAttorneys.net

  21. FindVAAccreditedAttorneys.net

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THE TOP 10 LEGAL DOCUMENTS EVERYONE NEEDS