How Do We Support Vulnerable Elderly Clients?

When working with elderly clients or dealing with aging family members, it can be challenging to balance their wishes and their desire for autonomy with the very real need to keep them safe from financial exploitation.

Research has shown that some senior citizens may be more susceptible to scams, undue influence, and other outside factors that may lead them to make decisions that are not in their best interests (James, Boyle, & Bennett, 2014). As practitioners working with the elderly, it is our responsibility to make sure that our clients feel supported and able to make their own choices, but also to ensure that appropriate safeguards are in place. It is possible to support a vulnerable older adult as they make important health, financial, legal, and family decisions, but critical safeguards need to be there.

In this post, we’ll discuss the the tension between autonomy and precautions as well as some of the safeguards that can be deployed around complex legal decisions such as conservatorships that tend to occur in later life. We asked some of our legal colleagues to weigh in on why it is important to help elderly clients retain their autonomy during the legal process.

Attorney Blake Rummel shared this:

"Elderly people need help with legal process (as do all inexperienced litigants) since there is so much at stake for them in a potential conservatorship setting. The Court assigns experienced attorneys to assist them since many personal fundamental rights and freedoms are at stake (similar to the assignment of a public defender in a criminal setting).

"An elderly client struggles with the fear of a loss of autonomy. When coupled with the decay of the aging process, the elderly client has even less ability to weigh advice and act in their own best interest. This is when the attorney digs deep as a 'counselor at law' to help the client understand the best options."

Attorney Deborah Keesey built on that:

"Elderly clients need more help with the legal process largely because access to legal information and the court system has become more difficult to navigate. Much of the legal filings and information sharing is done through a computer network. The elderly may struggle with using computers, retrieving digital information for guidance on issues, and vetting the proper legal advisor for their situation. This can be confusing and make it difficult to get help. Communication can also be hampered because so much is done through electronic mail, with the need to scan and send documents in a timely manner.

"Moreover, as we age, we often experience some degree of cognitive decline, making us vulnerable to scammers and susceptible to undue influence. The elderly may not know how to reach out for help, and may not be able to obtain information that will help them protect themselves."

Attorney Stephen Garcia shared more about why he helps his clients establish safeguards based on some of the particular risks he’s seen elderly clients face:

"The elderly face challenges of problems of proof, failing memories due to age, and intentional delays by the defense allowing for death which in many states — California for example — leads to a loss of noneconomic damages, also known as 'pain and suffering.' From the other side, there is a significant amount of money at play in long-term health-care litigation, and unscrupulous practitioners on both sides enrich themselves at the expense of duties they owe to their elderly clients."

Attorney Kent Kristof shared that based on his experience, he knows firsthand how difficult it can be to address the balance between autonomy and protection:

"In our practice, we have seen time and again that a strong support network, armed with flexible legal documents, is key to balancing autonomy and protection. Friends and family, who have known the client for years and through the ups and downs of life, are often the best guardians and are in the best position to notice if something is 'not right' with the client.

"With the client, we work hard to help create flexible legal tools the support team can use to step in when needed. If the client needs short-term assistance, our documents allow a trusted supporter to help the client as long as she needs. If something more major is needed, our documents are designed to allow for long-term support."

Another colleague, attorney Anne Marie Murphy, shared her experience-based insights into how elderly clients may feel, as well as how she helps them through difficult legal proceedings:

"Elderly victims of financial elder abuse often struggle with feelings of embarrassment and shame; it is important to work through these feelings with clients. It is also important to spend time with elderly clients (and often also with their supporting family members) to walk through procedural developments in the case and to prepare them for depositions and trial testimony.

"Supporting the whole person requires being honest with your elderly client about what is happening, but care should be put into doing this to prevent them from feeling bad or embarrassed. The conversation should always be led with intentions of care.

"Make it clear to your client that everything you do is with their best interest in mind and give them time to process any requests. They may not have given much thought to who will care for them as they age or how they will handle money. This can be an emotional topic, so be sure to approach it with patience and compassion. Once you begin discussing their needs, make it clear that you will be letting them make the decision whenever possible. This puts the power back into their hands during a time when they may feel powerless. Setting up the correct emotional safeguards is always easier when the elderly client’s decisional capacity is evaluated. In general, decision-making capacity refers to one’s ability to make their own decisions. An elderly client is deemed competent if they can demonstrate an understanding of the situation, awareness of what can happen as a result of their choices, and the ability to reason through and communicate their decisions.

"Additionally, elderly people are particularly susceptible to financial issues, including financial elder abuse and fraud, which is why there are safeguards that families and attorneys can take to prevent this from happening. Power of attorney gives a trusted individual the legal authority to make decisions on behalf of another person in specified matters, including finances. While this solution can prevent elderly individuals from making poor financial decisions, it has the potential to allow the individual given power of attorney to misuse it by making decisions that are not in the best interest of the elderly individual.

"A joint bank account is a less intrusive option that supports the autonomy of the elderly individual while allowing a trusted family member to keep an eye on their older relative’s finances. However, again, this can open up the potential for financial elder abuse if put in the wrong hands. You can support the autonomy of your elderly client with either of these options by allowing them to choose a trusted family member to help manage their finances while also evaluating whether this individual will indeed act with their elderly relative’s best interests in mind."

There is no perfect solution that will prevent every issue. However, by using the tips above and consulting colleagues when difficult issues arise, one can often support your clients’ autonomy while also feeling the peace of mind that comes with knowing that certain safeguards are in place.