Archive for the ‘Elder Clients and Elder Law’ Category

The Paralegal as Watchdog

Tuesday, March 8th, 2011

A recent post dealt with the paralegal’s unique position to assist in preventing elder abuse. As I point out in Working with the Elder Client nursing homes, family, and other caregivers are not the only source of abuse. Guardians are often implicated. Although not directly on point an ABAJournal.com post today reminds me that at times even lawyers can be involved in the mistreatment and mishandling of client funds amounting to abuse:

A former Winston & Strawn partner has reached an agreement that could pave the way for a guilty plea in connection with his work for a celebrity money manager.

Prosecutors told a Manhattan federal judge on Monday that the former partner, Jonathan Bristol, has reached an agreement in principle to resolve charges he laundered more than $20 million stolen from celebrity clients by convicted money manager Kenneth Starr, according to the New York Post, the New York Law Journal and the Am Law Daily. The money was allegedly laundered through attorney trust accounts.

I am not by any means suggesting that paralegals become a law office Nancy Drew or Hardy Boy. (A lot of my youth was spent with those books.) Indeed, even the term “watchdog” in the title to this post may be too strong. However, it is incumbent upon the professional paralegal to see can be seen and sometimes notice what is not there to be seen, make an appropriate record and when necessary “do the right thing.” Here’s an example from a previous post.

Client Grief and Paralegal Professionalism

Tuesday, March 8th, 2011

Those familiar with The Empowered Paralegal: Working with the Elder Client are aware that it focuses on the premise that elder law is a dual-natured creature and in many ways is quite unlike any other area of law. Substantively the law is law – statutes, cases, rules, and regulations – all of which must be researched, analyzed, understood and applied. Unlike any other type of law, however, elder law is not about something a client is going through, such as a divorce, bankruptcy, a real estate transaction, or even a criminal charge. Elder law is about whom and what the client is – an elderly person. The book seeks to enhance understanding of elder law clients, the laws applicable to them, and the issues they and their families face.  One of those issues is the grief felt by family, friends, and even the legal team, when a client dies or is dying. Thus, a understanding of how people view death, dying, and aging, including an understanding of how that people’s perspective differ depending on cultural, educations, religious, and personal backgrounds, is essential to paralegal professionalism for paralegals that work with the elder client and families.

This point was reinforced for me when I browsed through the first issue of Freelancer, a monthly e-zine from the National Association of Freelance Legal Professionals, a new professional association discussed in a previous post. It includes an article by Tina Johnson, a paralegal in a Minneapolis law firm. The article, entitled “The D Factor: Dealing with Death and Clients’ Emotional Up and Downs.” I can’t print the entire article here, of course, but here’s a link and here’s a particularly pertinent excerpt:

Certified grief counselors we are not, but we certainly display professionalism by treating clients with tact, empathy and compassion and by ensuring client confidentiality. Calming fears and soothing worries, paralegals must be prepared to deal not only with the legal aspect of things, but with the relational aspect as well.

It is not surprising to know that many times the paralegal is the go-to person the client contacts when they just need someone to talk to such as the grieving surviving spouse who is going through the mourning process and finds it very difficult to function on a day-to-day basis. In my experience, these clients often do not open mail or follow through on requests made by the law firms as part of the probate administration process. By talking and listening to the client, paralegal can reassure, support and encourage the client and provide as much assistance as the client needs.

So, assuming the link works, take a few moments to read Tina’s article, and a few more to check out the entire issue of Freelancer.

Disclosure: There is a link between the National Association of Freelance Legal Professionals and the Organization of Legal Professionals. I am on the OLP Advisory Council, although frankly the organization seems to do quite well without any assistance from me.

The Courage to Stop Elder Abuse

Sunday, March 6th, 2011

I do not normally reprint posts from other blogs in their entirety, but this one from ABAJournal.com is important and I don’t think they’ll mind:

Actor Mickey Rooney Says He Lacked Courage to Stop Financial Abuse

Actor Mickey Rooney told a congressional committee on Wednesday that for years he suffered in silence because he didn’t have the courage to seek legal help to stop a family member who was taking his money.

“If elder abuse happened to me, Mickey Rooney, it can happen to anyone,” the 90-year-old Rooney told the Senate Special Committee on Aging. Reuters, Bloomberg and the Associated Press have stories.

“My money was taken and misused. When I asked for information, I was told that I couldn’t have any of my own information,” Rooney said. “I was literally left powerless.”

Rooney didn’t identify the family member, but he has obtained a restraining order against his stepson, Christopher Aber, based on claims that Aber withheld food and medicine and took control of Rooney’s finances, according to the stories. Aber’s lawyer says the harassment allegations are false. A court has transferred control of Rooney’s affairs to a Los Angeles lawyer.

Rooney said Congress should pass legislation to strengthen enforcement in cases of elder abuse.

Bloomberg notes that securities regulators in 22 states are also trying to fight elder abuse by expanding a program that teaches medical professionals how to spot victims of investment fraud. The program is financed with corporate fines.

While program s teaching medical professionals how to spot victims of investment fraud are a great idea, I contend in Working with the Elder Client that the legal team is in the best position to protect elders from abuse: the medical team sees physical conditions, but knows little about the elder’s financial dealings; banks see financial transactions, but not physical conditions, etc. The legal team is most likely to have the access that can lead to awareness of elder abuse. As noted below, many clients are unable or unwilling to risk the repercussions of talking about abuse by caregivers upon whom they are dependent. It is not just a lack of courage.

It is not possible to deal in depth with this serious problem and the issues it raises for legal professionals in a blog post, here is an excerpt fromAs Working with the Elder Client that some of you may find helpful:

It is important that the legal professional know the legal definitions of elder abuse, mistreatment, and neglect set forth in statutes covering the jurisdictions in which they practice. It is equally important that the legal professional understand their legal obligations under those statutes and how those obligation relate to their ethical obligations. Finally, it is essential that the legal professional recognize the signs of abuse and neglect. Keep in mind that your elder client may be unable or unwilling to speak frankly about abuse they are experiencing, especially in the presence of a family member or other person who has assisted them in getting to your office.

Undue Influence

 

Undue influence is the most subtle type of mistreatment, and therefore the most difficult to detect. Since the elder person is unduly influence through fear, dependence, diminished capacity and other factors, the victim is unlikely to both willing and capable of reporting the abuse. Many will not even be consciously aware of the undue influence. This topic has been discussed in detail in previous chapters,[1] so here I will only list some of the signs that may indicate undue influence is being exercised over a client. These signs include:

  • The helper speaks for the client
  • The client repeatedly asks the helper to answer a question for him or her
  • The client consistently looks to the helper before answering a question
  • The client stops or changes an answer after the helper looks at, touches, or makes a movement towards the client
  • The helper frequently corrects the client’s answers
  • The helper refuses or is reluctant to allow the client to speak privately with the attorney or paralegal
  • The client appears confused or influenced by medication or alcohol.

None of these signs is definitive. Many elderly clients are confused; need help remembering, and the like. However, a legal professional should proceed with caution when these signs appear.

… it is my general practice to insist upon meeting separately with the client in any situation where there may be a conflict between my client and the person with the client. I apply this policy to parent/child and husband/wife situations as well as elder client situations. However, I do tend to emphasize it more in cases involving elderly clients, especially when a child is bringing in a parent to prepare a will, create a trust, or transfer property.

Generally, the logistics of this can be delicate as once the two are in the room it can be difficult and embarrassing for the client to ask that the agent leave. I handled this by taking the responsibility. I explain that it is my rule to ask the other person to leave at the very beginning of the meeting before there is any substantive discussion. I explain to both the client and the other person that I do this as a matter of policy so I can document the file for the benefit of all concerned, not because of anything related to their particular circumstances. The important thing from my perspective is (1) not to insult either the agent or the client by suggesting that the agent may be taking advantage of the client or that the client is not capable of independent thought, and (2) make it clear that I am the person responsible for this request, not the client. If an abusive relationship does exist, we do not want the abuser to blame the abused for this challenge to their dominance over the abused.

Once the other person is out of the room I look for changes in demeanor on the part of my client, ask questions intended only to determine competency, and inquire about the client’s relationship with the other person. Generally, the actual answers to the questions are not important. I am more interested in the client’s reactions, demeanor, and the way they respond.

All of the law office staff should be given a clear understanding of to whom they can speak regarding the client. If the agency is established for one member of the family, it does not extend to other members of the family or members of the agent’s family. For example, if a son is the agent, the staff should speak only to the son and not to the son’s wife. This is not an unusual situation. The son brings the parent into the office for the legal services, but depends on the daughter-in-law to carry on the dialogue with the law office because the son works during the day and the daughter-in-law does not. If it is necessary, formally establish the daughter-in-law as an agent, but do not begin “stretching” the agency beyond that which is formally established.

Handling Unethical Attorney Conduct: An Example

Monday, December 13th, 2010

From time to time I’ve done posts here on the dilemma paralegals face when working for an attorney who is engaged in unethical conduct. Often a certain amount of judgment is required as to whether the conduct requires the paralegal to report the conduct. I write about this in The Empowered Paralegal: Effective, Efficient, and Professional. There I emphasize,

If you do decide to report, I do suggest obtaining legal advice first from an attorney outside of the one in which you work. Remember that attorney has a firm obligation to keep what you tell her confidential. That attorney can advise you regarding protections to which you may be entitled, the proper authority to which you should report and the correct procedures for reporting. Generally, you will receive immunity from being sued by your employer for slander and libel, and you may be entitled to certain protections against on-the-job retaliation under “Whistleblower” laws. She will help you analyze the situation to determine whether you have the necessary facts, have properly interpreted the facts and validate your decision regarding the proper balancing of interest and integrity.

In fact a paralegal is well advised to seek independent legal advice from an outside attorney in determining whether to report.

I write about this again now because of a proceeding brought against six attorneys in Maine by the  Board of  Bar Overseers. Having practiced in Maine for over thirty years, I am familiar with many of the player in this drama, but the reason I am writing about it here is that the matter involved the theft of $300,000 from an elderly client (of particular interest to me because of the recent publication of The Empowered Paralegal: Working with the Elder Client, wherein I discuss such dangers) which theft was discovered by the attorney’s legal secretary who may very well have been a full paralegal.

The attorney (a member of one of the largest and most prominent firms in Maine) who stole the money has been disbarred for life and served two years in federal prison. The present proceeding is against six members of the firm’s executive board. The Board of  Bar Overseers is alleging they failed to properly supervised and report with regard to the incident. The full story is reported in the Portland Press Herald here and here. However, this is the allegation most pertinent to this post:

According to Davis [Bar Counsel representing the  Board of Bar Overseers – Hi, Scott!], Warren should have begun a thorough investigation of Duncan’s billing practices immediately after his legal secretary came forward with concerns about suspicious checks. Instead, Davis alleges, Warren accepted a false explanation from Duncan and told secretary Ellie Rommel not to seek legal advice from her private attorney.

If Rommel had listened to that advice, Davis alleges, “Duncan’s misconduct would have remained hidden, covered up and never properly reported by any of the firm’s board members as they were required to do.”

But Rommel continued to blow the whistle and consulted with attorney Daniel Lilley, whose interaction with Verrill Dana forced the firm to bring in outside auditors, Davis wrote.

Hence my modification of my original advice: a paralegal in this position should consult an outside attorney not only if they decide to report, but in determining whether a report should be made. This case, whether or not the allegation is true, demonstrates the folly of seeking that advice within the firm.

Release Party Invitation

Thursday, September 30th, 2010

Today is the official release date for The Empowered Paralegal: Working with the Elder Client. Despite my Oxford, Mississippi, connection, the release party will not be of the John Grisham variety. We start with the Philosphy Forum Series on the OleMiss Campus for a lecture entitled “The Authority of Empathy,” then one of the local establishments for a quick pint and other nourishment with the local bar association followed by the 6th Annual Japan Foundation Film Series: Japanese Films of the 1960’s event showing “The Fort of Death.” Feel free to join in the fun

Or you could spend your time productively by ordering a copy of the book. (I know this is simply blatent self-promotion, but what’s the point of having a blog if I can’t plug my own stuff.)

The Empowered Paralegal: Working with the Elder Client
by Robert E. Mongue

2010 • $38.00 • 328 pp • paper • ISBN: 978-1-59460-795-0 • LCCN 2010025542

Order now with 10% Internet Discount

——————————————————————————–

Elder law is a dual-natured creature and in many ways is quite unlike any other area of law. Substantively the law is law – statutes, cases, rules, and regulations – all of which must be researched, analyzed, understood and applied. Unlike any other type of law, however, elder law is not about something a client is going through, such as a divorce, bankruptcy, a real estate transaction, or even a criminal charge. Elder law is about whom and what the client is – an elderly person. The Empowered Paralegal: Working with the Elder Client enhances understanding of elder law clients, the laws applicable to them, and the issues they face.

The Empowered Paralegal: Working with the Elder Client examines the many influences on elder clients and their families, the deeply personal perspectives which result from those influences, and how they affect the decisions elder law clients make. It focuses on awareness and understanding of the elder client, explaining in clear language the dual nature of the elder client, the physical and psychological changes that occur as we age, and the practicalities of accommodating these changes when working with elderly clients. It also examines:

  • Issues surrounding competency, as well as the need for and methods of documenting competency in the file.
  • Dealing with the client’s family, including conflicts of interests, confidentiality and undue influence.
  • Perspectives, many culturally or religiously based, on aging, death, and dying.
  • Intestacy, estate planning basics, and the use of basic estate planning tools to meet client goals.
  • Advanced directives and other means of planning for end-of-life decisions.
  • Social Security, SSI, Medicare, Medicaid and other public benefit programs and laws directly affecting the elderly.
  • Elder abuse and the conflicts that may arise between the attorney/client privilege and mandatory reporting statues.
  • Ethical dilemmas faced by the professionals who work with the elderly.

___________________________________
“Mongue’s book does not cover the ho and the hum of regular ‘how-to’ paralegal books. In fact, what he covers should be taught in every school regardless of specialty, profession or even age. Here, Mongue deals with our feelings about aging and the myths, stereotypes, cultural prejudices and extrapolations to the general population based upon personal experience. He draws you in as he explains behavior and the aging process and teaches you how to react as a result. As it turns out, much of what we think about the elderly is wrong, wrong, wrong.” — Chere Estrin, Editor-in-Chief of KNOW, The Magazine for Paralegals and SUE, For Women in Litigation; Chairperson of the Board, The Organization of Legal Professionals (OLP)

“[A]n insightful guide that any legal professional who works with an older population will find extremely useful. Mongue brings his extensive expertise both as a practicing lawyer and a paralegal instructor to the table, and illustrates his points with interesting examples. He discusses the complexities of the law in regard to aging in a clear, direct style that readers of all experience levels will appreciate. This book is a must-read and a valuable desk reference for anyone who interacts with elder clients.” — Lynne J. DeVenny, Co-Author of Workers’ Compensation Practice for Paralegals and blogger at Practical Paralegalism

I am pleased to announce

Sunday, September 19th, 2010

that Carolina Academic Press is pleased to announce (and not just because they thought I’d never get it done):

The latest in Bob Mongue’s “Empowered Paralegal” series is now available. This one focuses on elder law issues.

Here are the details:
The Empowered Paralegal: Working with the Elder Client
$38.00 • 328 pp • paper • ISBN: 978-1-59460-795-0

You can read more about it and view the table of contents here:
http://www.cap-press.com/isbn/9781594607950

I’ll be adding some more info to the books page here soon. It is, of course, available through Amazon, Barnes & Noble, Borders, and other outlets.

Estrin Report: The Empowered Paralegal: Working with the Elder Client Book Review

Wednesday, August 11th, 2010

The following is from the Estrin Report. Chere Estrin is also Editor-in-Chief of KNOW, The Magazine for Paralegals and SUE, For Women in Litigation; and Chairperson of the Board, The Organization of Legal Professionals (OLP).*

The Empowered Paralegal: Working with the Elder Client Book Review

I don’t know what it was that I expected when I picked up a copy of Robert Mongue’s latest book, “The Empowered Paralegal: Working with the Elder Client” but that wasn’t as important as the fact that I just couldn’t put it down.

This is a book for everyone. While it is written specifically for paralegals, just substitute any position and you have a book that teaches you how to deal, motivate and learn from the older generations. This publication is not only for paralegals, it can be read by lawyers, administrators, legal secretaries – practically anyone who works in any capacity in a law firm environment. Why? Because for the first time that I can remember, someone is teaching how to handle the characteristics, traits, mental capacity and appropriateness of actions to age of clients and colleagues.

Mongue’s book does not cover the ho and the hum of regular “how-to” paralegal books. In fact, what he covers should be taught in every school regardless of specialty, profession or even age. Here, Mongue deals with our feelings about aging and the myths, stereotypes, cultural prejudices and extrapolations to the general population based upon personal experience. He draws you in as he explains behavior and the aging process and teaches you how to react as a result. As it turns out, much of what we think about the elderly is wrong, wrong, wrong.

With the millions of Baby Boomers about to set siege in the swamplands of Florida; the sunbelt of the Southwest and the hot, hot, hot but dry desert weather in Palm Springs, many firms and paralegals recognize that acting as counsel and paralegals for the senior generation will be much different than how the younger set thinks, acts and reacts. For the first time, Mongue tells you why so that you are better equipped for a smoother meeting, deposition, will writing, client meeting or other important event in your client’s space.

Mongue goes into great detail describing the professionalism and protocol you need in order to get the best possible information, client relationship, witness testimony and cooperation from an aging society. It’s simply fascinating. One chapter is devoted to death, dying and the end of life planning while another explains simply how to understand the differences in cultures such as generalities and diversity; Moslems, Jews, Catholics, Christians, Native Americans, Latinos/Hispanics, African Americans and others in what they want as they wind up the last quarter of their lives.

The book gives great tips on how to best communicate with someone in their later years. It teaches you how to talk to a senior citizen; how to best safe-proof their homes for optimum safety as the body changes and much more.

For any paralegal working with elderly clients, this book is a must-read. Even if you are working with graying baby boomers who are your colleagues, this book will clarify much of the “how-to’s” and answer the why’s: Why is the boomer thinking that way; why is last to embrace certain things but so much further ahead in accepting other concepts? Why doesn’t she understand me? The publication is artful in describing chronological, sociological, biological and psychological aging in a style that immediately captivates the reader. The book is so good, that you can substitute any part of the paralegal’s role throughout the book with another position entirely and still learn a brand new skill.

The chapter on Estate Planning and the Perils of Intestacy is excellent. The book covers “how-to” of estate planning such as a) explaining basic concepts b) writing forms c) the estate d) clarifying confusing basic estate plans e) basic estate planning.

The rich voice and highly expressive tone of the book plus the sharing of some of Mongue’s personal stories makes this book a great learning tool for paralegals of any level and any specialty. I highly recommend it to experienced paralegals, students, attorneys, legal assistants and anyone, anywhere who simply wants to be able to get their message across to those who have crossed over into eligibility for the early blue plate special at Tony’s Trattoria down the street.

Ranking: ***** 5 stars out of 5 stars
Publisher: Carolina Academic Press, Durham, North Carolina
Pages: 328 pages

*In the interest of full disclosure, I am on the OLP Advisory Board

Why the Elder Client?

Tuesday, August 10th, 2010

Well, my new book is off to the printer. Over the next couple of days I’m hopeful I’ll have some reviews to pass on. One question that arises is why I chose the elder client as the topic for this book. Here’s the story behind that decision:

The Empowered Paralegal: Working with the Elder Client

Preface

My first “real job” was working as a janitor in a hospital in western Massachusetts. Being new to the staff I often found my self assigned the wing of the hospital that cared for elderly patients. This was a wing in which no one on the staff wanted to work. The patients were generally senile and generally dying. They were all, of course, “old” and no one was anxious to be around old, senile or dying people.
Many of these patients were tied to their beds. Many had little or no sense of where they were. Some would repeat phrases or individual words endlessly. Often the repeated word was, “Nurse.” Almost all had constant needs – the need to be cleaned, the need to roll over, the need to be acknowledged.

As I moved from room to room mopping and dusting, morning after morning, two things came to mind. First, these people, being elderly and approaching the ends of their lives even if they were not –at that moment – dying, had a good number of commonalities. Second, however, each of them was different. Each had their own particular instance of whatever disease or ailment brought them to the hospital even if many of the other patients had the same disease or ailment. More importantly, each had his or her own personality and, if not suffering from constant dementia, their own approach or perspective on their current state, their future, and their approaching death.

One of the advantages of being a janitor is that, unless there is a specific need, you are largely invisible. Being unnoticed, you can observe not only the patients but their families and the medical staff. Here to, I found commonalities. But among families, I saw remarkable differences not only in personalities and temperaments, but in their approach to the current status, the future and the approach to the end of life of their loved ones. The broadest, most superficial commonalities arose from the mere fact that those loved ones were elderly and in the hospital. Other commonalities appeared to arise from cultural, religious, educational, and economic factors.

Our area did not have a lot of diversity. However, there was enough to see that common elements of the perspective of second generation Italian-Americans from the northern-New England “Yankees” of my mother’s family and the French/German influence on my father’s family. The Protestant perspective was not much different from the Catholic, although the differences were perceptible. There were common factors in the approaches of the poor, distinguishable from those of the middle class, which were equally distinguishable from the rich (although the truly rich seldom found it necessary to die in the public hospital.) Perspectives changed with the level of education. Combining these factors with differences in attitudes that existed between generations within each family resulted is a multitude of individual emotional and intellectual reactions to illness, aging, disability, dementia and death.

Yet, it appeared to me that medical service providers had only one approach that they applied to all of the patients and, if they paid any heed to the families at all, to those who loved and, except for the duration of their hospitalization, provided care for them. Caught up in the science of medicine – the machines, the charts, the new techniques, perhaps combined with a need to depersonalize the patients in order to remain objective, the approach was often one of intellectual superiority, of knowing better than the patient or their families what the patient wanted or needed, of knowing better than the patient or their families when, how, and where it was better for the patient to grow old or die. Patients appeared to be just patients, not necessarily people in the sense of individual persons.

Thus the only perspective that mattered was that of the medical providers. It is not that they did not care, often deeply, for their patients. It appeared simply that they believed there was only one way to care for the patients, regardless of the individual perspective and personality of the patient – their way. I was in high-school at the time, convinced that I was going to become a doctor myself, so my focus was on the medical profession. It was not until a decade later as I began the practice of law that I realized the legal profession was often afflicted with the same narrowness.

In my last year of high school Elizabeth Kubler-Ross published On Death and Dying beginning the long process of changing the medical profession’s perception of the “right” way to care for the dying patients. Since then great progress has been made not only in the medical profession’s approach to death and dying, but in the approach to aging and the elderly with new research assisting in the understanding of the elderly in terms of medicine, sociology, law and many other aspects of society. It is my hope in this book to digest and present much of that knowledge for the paralegal – the person in the law office most involved in interacting with the client – so that the paralegal will be empowered to best meet the needs of the elderly client and to manage that client as part of the legal team.