Approach of Elder Law Attorneys in Dealing with Clients

Elder law is unique in that the state often disregards the federal rules. In this regard, various blogs have discussed the violation of federal pre-emption. For example, the state's position on spousal refusal, disinheritance of a spouse being treated as a transfer and the requirement that all trusts have the state as the remainderman, all clearly violate the federal statute.

Therefore, the elder law attorney is often presented with the conundrum of the approach to take in advising a client. My particular thinking is that the attorney should not be dictatorial, but should point out the federal law, the state law and even the variants from counties to counties.

For example, I have discussed in numerous blogs the exemption of the transfer of the home to a child who provided care for the parent for two years prior to the nursing home admission as being an excludable transfer. I have also pointed out in one example a situation in which a child does not live in the home, but is willing to. I pointed out the possibility of the child moving into the home in the hope that the parent not go into the nursing home for two years, so that the two year rule should apply. Whether this advice should be given mandatorily or optionally, is obvious. This is just an example of a possible situation in which the client should decide after the attorney advises of the possibilities.

We have also discussed caretaker agreements in which the state has determined that the compensation to the child should be "reasonable". The state refuses to define reasonable. Therefore, in doing a caretaker agreement you must advise the client that the state's position might be unconstitutional and violate due process, as the word "reasonable" is not sufficient to provide adequate notice of the amount of compensation.

Another example of an uncertainty is whether an individual constitutes a dependent relative. We have discussed the fact that a dependent relative residing in the home renders the house an exempt resource. It is not the attorney's decision to decide whether a relative is dependent, but it is the attorney's role to bolster the status of dependency, the various factors for which are set forth in Post 14.

Therefore, it is my opinion that an elder law attorney should never dictate to a client what path to take, but rather should point out the law, the uncertainties of the situation and what the client subjectively is willing to undertake.

Further, in your correspondence to your client, you should set forth a memo as to the plan, the issues presented and the fact that you can never guarantee results because of the uncertain status of New Jersey law.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.
© October 2011, Post 167