Setting up an elderly client practice

Part three: the expertise required

So, you have your office set up, it looks great and you have a steady stream of clients coming through the door. However, what do you need to do/know to ensure your practice grows steadily and successfully from here on in? Jennifer Margrave, a sole-practitioner, continues her series of articles on the elderly client practice, concluding with a look at how you can develop your expertise as an elderly client practitioner.

I will deal with this in three sections:

Knowledge;
Contacts;
Retrieval of information.

But before I give more detail about these three points let me enter into some philosophical discussion about what solicitors actually do, i.e., what do we provide for the fees we charge?

The simple answer is that we give legal advice (note the word ‘give’) and for that advice, whether given verbally, by letter, by report or by referral to ‘specialists’, i.e., barristers, we get paid. Or we carry out instructions given to us by clients using the legal jurisdiction in which we work.

Before we can give that advice, however, information is required about the problem – the client’s perception of that problem which we might then have to analyse and classify into the legal restraints with which we work.

Let me give you an example: “I want to give my house to my children but I need to live in it in the meantime.”

That is an easy thing to do if you were just carrying out that person’s instructions; all that is required is a transfer to the children, register the document at the Land Registry and send out your bill. But with any client – not just the elderly – there are of course greater questions regarding this particular instruction:

Does the client really intend to make a lifetime gift within the Inheritance Tax rules; does the client understand the gift with reservation of benefit rules?
What about security of tenure if the children turn nasty, or become bankrupt or get divorced?
What about the possible question of Capital Gains Tax – who are you advising in this respect?
Who pays the outgoings or maintenance if the house is given away?
Is your client being unduly influenced?

There are other implications but it can immediately be seen that, because of our training, we are immediately thinking around the problem and it is not just a matter of carrying out the client’s wishes.

In addition to that we are of course constrained by our duty as solicitors to ensure that the law is upheld and that we do not collude in practices that are illegal.

When advising the elderly it is essential to have the expertise to consider all the problems that may beset any client but with a large chunk of detailed knowledge in fields which may not be considered ‘legal’. It may be for instance, that you find yourself having to find a nursing home for an elderly client who has granted

you an enduring power of attorney. She has no other relatives. How do you do that? How do you negotiate with the home, obtain the best funding, organise the finances in the most efficient way? It is not sensible for instance, to make monthly payments by hand delivery to the home; the legal fees would exceed the client’s income! This is why I insist that elderly client solicitors are a different breed and need special training; and this is why I have classified the expertise into the three above. Let me take knowledge first, the specific legal knowledge required.

Apart from the normal categories of law that would be required such as wills, probates, trusts and land law consider the following and become fully conversant with them:

Lifetime gift planning;
Care in the Community funding and how it works;
NHS Funding and how it works;
Welfare benefits and how they work;
Some NHS practise, in particular doctors’ guidance on medical treatment;
Financial products on the market and what you would be expected to do to implement these – with the overriding duty not to ‘advise’;
Court of Protection/Public Guardianship Practise;
Enduring powers of attorney and how they work; the registration process.
Care homes legislation and contracts;
Human Rights legislation and how it impacts on care;
Carers rights;
Enough knowledge about foreign jurisdictions to know where to refer your clients – more and more have second homes in Europe and elsewhere;
Advance directives;
Funeral arrangements – what are woodland burials?
Mental capacity and how to spot incapacity;
Who is your client?

The last two I have included in particular because when running an elderly client practice, the knowledge required in these particular fields is much more detailed and specialist than for other clients. How can you acquire this knowledge? Apart from the normal courses with which most firms get bombarded, the following I would suggest are essential textbooks:

Heywood and Massey: Court of Protection Practice¹ – a new edition is imminent;
Long-Term Care for Older people by Margaret Richards²;
Elderly Client Handbook³ (currently being revised and edited by Solicitors for the Elderly for the Law Society);
A good tax and administration of estates textbook – there are various looseleaf manuals published;
Assessment of Mental Capacity⁴.

In addition practitioners should subscribe not only to Elderly Client Adviser but to Elder Law and Finance – sorry ed!

Another good common sense source of basic information for the elderly is the Age Concern Factsheets⁵ that are updated on a regular basis.

I also subscribe to Angela Maxwell’s service⁶ – she is an independent adviser on government benefits and publishes a quarterly updating sheet.

The second part of the expertise is ‘contacts’ and this might seem superflous to those solicitors who do not deal with the elderly, but probate lawyers I am sure will be familiar with some of the contacts that are regularly either employed directly by the solicitor, or clients are referred to them.

It is essential that these have the right approach to the elderly and I regularly check with clients that they are happy with those who I use or recommend. Some of the contacts are as follows:

Accountant;
Independent Financial Adviser;
Removal/house clearer;
Independent care adviser (see box below);
Care agencies;
Nursing agencies;
Taxi firm;
Social Services;
Tracing agents for family trees;
Plumbers/electricians/general builders;
Other solicitors/barristers who advise in other specialist fields or who practise in areas outside your area;
Estate agents.

This list is not exhaustive but what happens in my office is that if we use somebody who we find to be efficient, cost effective, and well tuned to the needs of our clients, then they are added to our list of contacts.

What is an independent care adviser?

I have met two in my area but one is currently studying for her doctorate so is not ‘available’ but essentially they are nurses or other medically qualified people who have worked in geriatric hospitals or nursing homes usually to matron/manager standard. They assist in finding placements in the appropriate homes by assessing the elderly person and then ensuring they go into the best home available for them. Quite often my advisers have then assisted by taking the client to the new home by taxi with their suitcases/zimmer frames, etc., ensuring that all their goods are moved with them. This must be more efficient than a solicitor carrying out the job. But be warned: this is a new area, there is no controlling body and there are untrained ‘advisers’ who do not carry out the rigorous assessments that is the essence of the job.

The use of other solicitors is important because many older clients now move to be nearer their children – in some cases in other countries. With the best will in the world firms cannot service everyone and it is good marketing to ensure that your elderly client is passed into the capable and expert hands of another elderly client practitioner.

That is why Solicitors for the Elderly is such a good organisation – at least the members have thought enough about the elderly to belong to this nation-wide society.

It is envisaged that, as part of the elderly client practice, the lawyer could well find that they are involved in the day-to-day administration of the older person’s affairs and any of the above may be called upon to help – knowing that these contacts can be relied upon and trusted is an important part of the elderly client practitioner’s weaponry.

This can of course only be built up over time and usage but it would be wrong to find a good decorator for instance and then not keep a record of his telephone number to hand.

This leads me to the third part of this expertise article, which is retrieval of information. What I mean by this is being able to advise the client quickly on not only the up-to-date law but also with information they may require quickly. Every office should have a retrieval system for giving information on the phone when asked – this saves a return phone call at least.

In order to keep up-to-date with the law it is essential, I would suggest, to use the internet – to be able to access the government websites for the Public Guardianship Office⁷, the Department of Health’s websites⁸, and the Solicitors for the Elderly’s website⁹. All of these, if accessed on a regular basis, will keep the elderly client practitioner up-to-date with changes in the law.

For instance, it was recently announced that the General Medical Council has published new guidelines for doctors relating to ‘Advance Directives’; this was downloaded and absorbed the day after in case any clients asked about them.

It can be embarrassing if a client mentions something they have read in the press and the solicitor has no knowledge whatsoever about it!

I hope the above assists – as I said in my first article there are many thousands of elderly who require help – as a further evidence of this I have been told by Surrey Social Service that they have over 1500 ‘Preserved Rights’ clients transferred to them from the DSS and it is going to take months to sort out the funding – each case manager has over 200 cases on their books. If Social Services is so busy it can be seen that there is more than enough work in this area for legal advisers.

Reference:

Heywood & Massey: Court of Protection Practice Twelfth Edition by Norman A Whitehorn Sweet & Maxwell 1991
Long-term care for older people: Law and financial planning by Margaret Richards Jordans Publishing Limited 2001
The Elderly Client Handbook: The Law Society’s Guide to Acting for Older People (Second edition) by Gordon R Ashton The Law Society 2000
Assessment of Mental Capacity: Guidance for Doctors and Lawyers. A report of the British Medical Association and The Law Society British Medical Association 1995
Age Concern Fact Sheets available from Age Concern England, FREEPOST, (SWB 30375), Ashburton, Devon TQ13 7ZZ. Tel: 0800 00 99 66
Angela Maxwell, State Benefits Consultant ‘Tysties’, Tile Barn, Woolton Hill, Newbury, Berkshire RG20 9UY Tel: 01635 250929 email info@angelamaxwell.com
www.publictrust.gov.uk
www.doh.gov.uk
www.solicitorsfortheelderly.com

Jennifer Margrave is a solicitor practising from her own offices in Guildford, Surrey. She can be contacted on 01483 562 722 or by email at jm@jmargrave.co.uk.