As older adults increase in number so do the legal services they require. While the legal issues are often prosaic, the older adult’s situation frequently involves prickly considerations. Here are a couple of 2001 examples:
Lessons Learned: Joint bank accounts are often used as a simplistic estate planning tool with the advantage for older adults of getting help with paying bills and avoiding probate for account assets. This approach, however, leaves the older adult vulnerable and may have the unintended result of favoring one relative over others when the older adult dies. A good alternative to the joint bank account is a power of attorney. The attorney-in-fact can help with the management of the account for all practical purposes as well as a joint owner and has a fiduciary obligation to act in the grantor’s best interest that a joint owner does not have. A revocable living trust is another alternative to a joint bank account. In working with older adult clients on these kind of issues ascertain all potential family and intergenerational conflicts – be especially thorough if there are second marriages and step-relatives to consider. Some lawyers use a questionnaire on which clients list all their accounts and joint owners. Document the file with the advice given and with written client consent in all matters involving substantial amounts of money – gifts, settlements, and client trust account disbursements. See “Bank Added Name To Account, Not Liable” by Allison Bianchi, Lawyers Weekly USA 2001 LWUSA 801, 11/15/01.
Lessons Learned: As correct as the court’s decision is in this case seems, it is hard not to wonder about the lawyer. It is not unusual for a third party to contact a lawyer on behalf of an older adult. A lawyer in these circumstances must not forget that the older adult is the client and not the third party even if the third party is paying the lawyer’s fees. It appears that the lawyer in this case saw his function primarily as that of scrivener, simply followed the third party’s instructions, and did not engage in the sensitive client communications that older adult clients require. If he had done so, an older adult client and her family might have been spared a difficult experience.