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Mewhinney, K --- "The human touch: clinical teaching of elder law" [2012] LegEdDig 3; (2012) 20(1) Legal Education Digest 8


The human touch: clinical teaching of elder law

K Mewhinney

Stetson Law Review, Vol. 40, No. 1, 2010-11, pp 151-236.

The teaching of Elder Law is becoming a common element of many law schools’ curricula. Most courses are still doctrinal or lecture based, but there has been a steep increase in the number of clinical courses focusing on Elder Law. The growth in Elder Law teaching coincides with a long-overdue trend toward providing students with more experiential learning opportunities.

There are certain luxuries involved in teaching Elder Law by working with actual clients. All students can relate to the clients, because most students have older relatives. Aging crosses race, class, ethnicity, nationality, and gender.

Elder Law clinics tend to have lovable clients. Older clients might take more time with side stories, but they will usually acknowledge this tendency and encourage the anxious students to let them know when there is work to be done.

Moreover, older clients seem ‘safe’, allowing students to get past some of the barriers that often make effective lawyering difficult. Later in the course, students are more comfortable when they face the challenges of clients who have mild dementia, family interference, or health problems that necessitate home visits.

Another luxury in the clinical teaching of Elder Law is that it is rich in big questions for students to consider, beyond the mechanics of lawyering skills. Some of these questions are intimate and even spiritual.

Other big questions faced by clinic students relate to the law itself. How far should the law go in its role as protector of the vulnerable? At what point is this protector role countered by respect for the older person’s autonomy? Is there a place in the law for ‘filial responsibility’, or does the responsibility run only from parents to their minor children? When has an older person been unduly influenced by someone?

In some cases, the big question is whether the client is competent to direct the legal advisor, which might be a threshold issue, or competent to sign a document. In this situation, students must carefully assess the facts using thorough investigation and ‘due diligence’ for the client’s protection. Occasionally, a medical evaluation is arranged or the student seeks an opinion from the client’s physician. The cases might involve small amounts of property, but the overall process of assessing capacity and evaluating a client’s situation is a fundamental skill in the practice of Elder Law.

Diplomacy and boundary-setting skills are useful for all lawyers; they are essential in the Elder Law practice. Because older clients often have actively involved adult children, students have to learn how to manage that involvement. This is precisely the type of skill that cannot be effectively taught in just the classroom setting. If students do not make clear who the client is, there is a risk that the older person’s ‘voice’ will not be heard.

It is a challenge to teach practical judgement. Students are not always aware that judgement is a part of good lawyering. Building their ‘judgement muscle’ is a challenge in the Elder Law clinic. In assisting older clients and their families, an attorney is often using experience and instinct to assess the situation. It is the difference between ‘Can the client do this?’ and ‘Should the client do this?’

Few places are more confusing and alien to the public than the world of hospitals, nursing homes, and other health-related services that older people need. Exposing clinic students to this complex world offers them a skills set that is invaluable when they begin to serve older clients.

In the late 1980s, Wake Forest University in Winston-Salem, North Carolina, developed a proposal for a multidisciplinary centre on aging. The guiding concept was that the problems of older people would be best addressed by a team approach, rather than having discrete silos of expertise that do not communicate with each other. Named after a former CEO of R.J. Reynolds Company J. Paul Sticht, the Centre includes physicians, pharmacy experts, social workers, and pastoral-care providers. Research, teaching, inpatient care, and outpatient clinics are provided, along with rehabilitation services and inpatient adult psychiatry.

Located just five miles away from Wake Forest University’s main campus and law school, the J. Paul Sticht Center on Aging and Rehabilitation gives law students a unique opportunity to learn from medical school faculty as well as the other professionals who serve older clients. For example, many Elder Law courses teach students the laws on living wills and healthcare powers of attorney. In Wake Forest’s program, the students actually assist clients in completing these, resulting in a richer understanding of end-of-life issues through an immersion in the medical world. They may tour an intensive care unit with a physician who has years of experience advising patients and families on end-of-life decisions. A pastoral-care chaplain helps the law students understand the common religious and spiritual responses to the dying process. A palliative-care physician or the medical director of a large hospice program teaches our law students about both healthcare coverage issues and the wide range of services offered by palliative-care and hospice programs. Finally, some students get to observe the ethics consult team analysing and making recommendations on end-of-life disputes in the medical centre.

For older clients, there are certainly many areas in which medical and legal needs are concurrent. These involve three primary arenas: questions of mental capacity in guardianship and testamentary capacity cases; healthcare coverage issues under Medicaid, Medicare, and private insurance; and end-of-life care that implicates advance directives and medical standards of care.

Most Elder Law clinics handle guardianship adjudications. These are excellent teaching tools for several reasons. In many states, they proceed more quickly than traditional litigation, so a student can often handle a guardianship case from start to finish in one semester. The cases require good fact investigation, especially gathering of medical records, translating medical terms into plain English, and interviewing family members who may have strong views about the case and each other. Some cases are particularly challenging because it is unclear whether the marginally impaired person even needs a guardian or how extensive a guardianship is needed.

In Wake Forest’s program, students generally handle cases as court-appointed guardians ad litem. Because guardianships focus on health-related issues, they are perfect cases for us. When issues of capacity are contested, the student must cast a wide net to understand the situation. The students develop skills in fact investigation and then learn to record these in the file in a useable format.

The student starts the will interview by informally eliciting what is on the client’s mind and how the client wants to leave property. We provide the student with a lengthy questionnaire to go through after that, to get more details, but encourage the student to allow him or herself to get ‘off track’ as needed.

The student also reviews deeds to confirm the client’s ownership interest. Occasionally, it turns out that the client only has a life estate and does not realise that it is no longer possible to select a beneficiary of the home. The student also goes over life insurance-beneficiary designations and financial accounts that might be set up as ‘joint with right of survivorship’ or as ‘pay on death’ accounts. The student will caution the client about a possible future sale of the client’s home.

In explaining powers of attorney, the student typically answers many questions or gently probes the client’s concerns to get to those questions. Often the student needs to clarify such issues as whether the agent under the power of attorney will be ‘taking over’ and what the agent will and will not be allowed to do. After the power of attorney is signed, the student provides a verbal and written explanation on how the document (and any other signed) can be revoked in the future. Clinic staff take care of the registration of the power of attorney with the appropriate government office.

Students can offer significant help to two groups of clients in particular. One group consists of those clients who are close enough to being Medicaid-eligible that they simply need to know what steps to take in the future, should they or their spouse require nursing-home care. Another group is made up of those married individuals whose incomes are reduced when one spouse enters a nursing facility on Medicaid.

In our program, each student is assigned at least two clients who are unable to travel to the clinic office. Because they are time consuming, the number of these home visits is limited. Typically, these are clients who are homebound, who reside in assisted living or nursing homes, or who are in the hospital. Nursing home social workers are helpful in understanding the client’s situation. Students also learn to interact with administrators, billing-office personnel, nursing staff, and, sometimes, the legal departments for the facilities.

Sometimes these cases highlight the ‘big question’ of safety versus autonomy for older people, and the power of family members versus older relatives in making decisions. Students must demonstrate diplomacy, assertiveness, and sensitivity to family dynamics. When the client has an impairment, it is a real test to balance the role of advocate with the role of counsellor when the client’s choices might expose him or her to some risk.

Nursing homes are often nervous about having legal representatives come in, so it helps the Clinic to represent clients most effectively if we have a relationship with the nursing-home staff. Meeting the staff face to face usually lessens their fear.

In several cases, the prison-guard mentality of long-term care administrators was shocking to the law students. We sometimes see de facto involuntary commitments of older people, i.e, with no court adjudication of incompetency. For example, we were contacted by the regional long-term-care ombudsman about a man who was not being allowed to leave the assisted living facility where his wife had put him. When the clinic student and I went to meet the man, who was fully competent, we got his permission to review his file. The first page in the facility’s very thick file (as he had been a resident there for over a year) said ‘Do Not Provide the Code to Mr to leave the building.’ (Building doors had a coded alarm system that alerted the facility to unauthorised entries and departures.)

After investigating the matter, the student informed the facility that it could not keep the client against his wishes. The student worked for several weeks with the client’s wife to arrange for his return home. The family negotiations were particularly challenging because the client’s wife wanted him to be ‘completely safe,’ which she felt he would be in the facility. It turned out that the client had, in fact, learned the door code. But his wife had moved all his funds out of their joint account and pushed him to stay where he was. Compounding the problem, the man’s psychiatrist refused to release his records to Wake Forest’s Elder Law Clinic without his wife’s permission. This, again, involved some negotiation and education of that provider about the patient’s right to control his own records.

Many Elder Law clinics, like many Elder Law attorneys, do not handle litigation, with the possible exception of some guardianship matters. The length of most lawsuits can result in a case being handled by multiple students over several years.

In Elder Law clinics that do handle litigation, typical cases involve suits over breach of fiduciary duty, consumer law disputes, landlord-tenant cases, and age or handicap discrimination. In our program, we are very selective about accepting litigation. The case generally needs to involve some issue of mental capacity, a known ‘bad actor’, or abuse of trust by a family member. Handling litigation that challenges an older client’s prior transactions gives a student valuable insights on how to avoid such challenges when assisting other older clients.

In our program, students have drafted and filed numerous complaints, conducted discovery, argued motions, and handled bench and jury trials. The students have also won injunctive relief, taken and defended depositions, and negotiated settlements. One student even defended a deposition in the nursing home, when his client (the plaintiff) was too ill to leave.

Some of the litigated cases have gone to mediation, either by court order or by agreement of the parties. While not all the cases were resolved in mediation, preparing for and participating in the mediation has given students excellent experience in the process.

Clinic students get to see the problem of elder abuse from many angles. They learn about mental impairments that increase vulnerability to abuse, collectability issues in cases, criminal prosecution of abuse, evidence issues, and the need for community education as a prevention tool. It is, sadly, an area of Elder Law that is rich in teaching opportunities.

It is important that Elder Law clinics do more than educate about existing law. They need to help the public become aware of proposed laws and to consider how our laws affecting older people could be improved. Our program has served as a catalyst when legislation was proposed that threatened good end-of-life care. Having close working relationships with the medical community has allowed us to respond quickly to legislative issues.

Community education programs put on by Wake Forest’s clinic students have focused on fraud, advance medical directives, nursing-home residents’ rights, and innovative local programs for aging adults. In addition, students have been invited to speak at churches, public and subsidised housing complexes, congregate eating facilities, county health departments, AARP functions, assisted living facilities, and nursing homes.

Most Elder Law clinics and courses emphasise ethics. There are four main reasons I have found to stress the ethical issues. First, my experience in litigation makes me particularly sensitive to the risk of challenges to documents. By paying attention to who the client is, and avoiding undue influence, the Elder Law attorney’s work is less likely to be challenged by other family members or to be set aside by a court. Conversely, the students know what to look for when determining whether to challenge an older client’s transaction from the past.

Second, it seems to me that my students are surprisingly deferential to the adult children of older clients. This might be because these ‘children’ are the age of the students’ parents. It is also easier, often, to quickly gather information from adult children, rather than wait for the older client to remember it or to find the right piece of paper.

Third, because Wake Forest’s clinic is located in a medical facility focused on older people, we have experience working with those who have physical or mental impairments. Because we conduct home visits and advise hospitalised clients, we are more likely to deal with capacity and conflict of interest issues. Starting conservatively by being protective of the client’s privacy is the best approach for learners. It helps to explain to the active relatives at the initial contact that the student will be meeting with the older client and they are not required to attend. On occasion, a client actually thanks the student for asking the relative to wait in the lobby. Clients have various explanations, when the door closes behind them: they tell us that there is something they want to say without their relative hearing, or they express concern about being pressured by the relative.

For students, it is sometimes challenging to advocate for what impaired clients want. The student’s initial reaction is to be protective and consider mainly ‘best interests.’ Someone new to lawyering has a harder time than an experienced attorney putting aside established views of what the client ‘should do’. On the other hand, it is exactly this frank discussion of what the client ‘should do’ that is part of the lawyer’s role as counsellor.

When the student learns to listen and communicate, he or she builds rapport and also begins to pick up on common misunderstandings. Clients often say things like, ‘I have a power of attorney. My daughter’s name is already on my checks’. Of course, having a joint account or an agency account is not the same thing as a power of attorney. Students in an Elder Law clinic learn to gently clarify and correct these misunderstandings, while being explicit that the choice is the client’s.

Interviews are adjusted to accommodate the clients’ limitations. For example, students are taught to be attuned to client fatigue. They check periodically with the client about continuing, if they see the client’s energy level dropping or ability to recall waning. Because of possible incontinence issues, students mention early in the interview that the client can ask to take a break at any time, and they explain that the restrooms are down the hall.

Various criteria come into play when Elder Law clinics select students. At Wake Forest, the course registration is ‘first come, first served.’ For the spring semester, two slots are held open for second-year students. This way, the program can offer a paid position to one student to work during the summer.

Our program is a one-semester, four-credit course, and students spend eight hours in the clinic and two hours in a weekly class.

At Wake Forest’s program, the primary course materials are statutes, checklists, sample letters, links to Web sites, articles and manuscripts, and questions to be answered for class. Since 2009, these materials are only on TWEN rather than in hard copy. They are divided into chapters that track the syllabus.

Because Elder Law involves many other disciplines, inviting guest lecturers can enrich the substantive-law teaching.

In the first few weeks in Wake Forest’s program, students have projects that orient them to Elder Law terminology, advance directives and end-of-life issues, and Medicaid basics.

In our program, two class sessions are specifically focused on the learning experience. These are called ‘case reviews,’ and each student picks two cases to present. They discuss legal and ethical issues they encountered, as well as what they felt they did well and not as well, and their colleagues offer suggestions.

Clinical experience gives students a strong start in learning the legal rules, ethical principles, and interpersonal skills that older clients need in an attorney. A short experience will, by necessity, only begin to teach the students what they need to know. But it can inculcate in them important lessons about being a good lawyer and the needs of our older generation. As Elder Law clinics grow in number, we should continue to share our approaches to teaching and service. Our teaching has that most powerful element – the human touch.


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