denotes premium content | Jan 9 2009 Feature
posted 1 Nov 1998 in Volume 4 Issue 1
Forum:
Probate or elderly client practice
Last July I spoke at the Probate and
Estate Practitioners Conference in Birmingham and was told afterwards that I had
been "controversial". If that is so it is just as well that I was invited
because there were a number of things that I was anxious to say. For some years
I have been advocating the role of the "elderly client practitioner" and the
question that needed to be addressed was whether probate and estate
practitioners could take over this role. My message was that unless they were
able and willing to broaden their approach the role was not theirs. I understand
that subsequently it has been decided that Solicitors for the Elderly will not
merge with (or be absorbed by) the newly formed Probate Section but instead will
retain their own identity. I hope that both organisations will now flourish -
independently.
Elderly Client Practice
Why, you may well ask, should a
district judge be concerned about these matters? Not all judges have a
background in litigation and it can be valuable to bring a new approach to the
bench. I started my legal career as a probate and estate practitioner gradually
developing (without realising it) into an elderly client practitioner, although
it was always my aspiration to be a general practitioner - long since an
outdated concept. My wife and I have a mentally disabled son and this compelled
me to investigate areas of law that would not otherwise have concerned me. My
experiences provoked me into writing Mental Handicap and the Law in the late
1980s and, whilst doing so, I became convinced of the benefits of a client
focused approach. Most solicitors practice in traditional fields of law such as
conveyancing, matrimonial, criminal and probate, but instead some should
concentrate upon acting for particular client groups such as the elderly. This
is not entirely altruistic. It enables these practitioners to provide a more
comprehensive service to the client but also assists them in marketing their
services and enables them to become more profitable through
specialisation.
At our Annual Conference in 1992 I advocated the development of "elderly
client practices" and the Law Society was perceptive enough to take up this
concept, recognising a growth area of work for lawyers. Hence the Elderly Client
Handbook which I then wrote for The Law Society and Elderly People and the Law
published later by Butterworths. There are no doubt those who consider that I
would be better confining myself to my judicial duties, but my novel approach to
the law must have some merit because the latter book has recently been developed
into the loose-leaf Butterworths Older Client Law Service and I am now writing a
second edition of the former with the assistance of Anne Edis. Now that a label
and hence recognition has been given to something that some firms were doing
anyway, it is merely natural progression for a new group to be formed to provide
a sense of identity and promote this discrete area of work.
Older clients do not seek a specialist
who will take up complex cases for them - they may not live long enough to see
the outcome. They want trustworthy local practitioners who will help them and
their families to maintain a peaceful and secure existence, heading off conflict
before it reaches them. An understanding of the client's overall needs may be as
important as expertise in particular fields of law, and this involves a working
knowledge of welfare, housing and mental health law as well as the fast
developing fields of community care, health care and disability
discrimination.
Contrast with Probate Practice
Anyone who glances through any of my
books will realise that there is far more to acting for older people than
treating financial management for the living as an add-on to probate practice.
Administering the affairs of someone who is half-dead may not seem much
different from the estate of someone who is actually dead - just fill in
different forms, send these to the Court of Protection rather than the Probate
Court and work with the family rather than for the beneficiaries. But when it
comes down to it there are significant differences between probate practice and
elderly client practice. We have all been brought up to act on the instructions
of the client but this is not so easy if the client becomes mentally incapable.
You cannot simply withdraw because this is the stage at which your client most
needs your services. A receiver or attorney may be appointed but, unlike an
executor or trustee, this is merely an agent acting on behalf (and hopefully in
the best interests) of the mentally incapacitated person who is really the
client. It may be necessary for the solicitor to refuse to follow the
instructions of a receiver or attorney and refer to the Court of Protection for
guidance. It is less likely that the probate practitioner would need to act in
this way with personal representatives or trustees.
Probate practitioners are in danger of
falling at the first hurdle. Whenever a potential conflict arises the golden
rule is to ask "Who is my client?" and remind yourself that you should act for
and in the best interests of that person. A consensus approach is not the
objective. When seemingly instructed by a caring member of the family you should
adopt the same approach and consider who you will be acting for. If this is the
elderly person you should insist on seeing that person alone to ascertain that
they really wish to instruct you, are competent to do so and not subject to
undue influence. Conflicts of interest do exist, especially in families, and you
must be alert to this. A typical example is when the son approaches you about
mother transferring the home (to him, of course) because it might be lost in
funding residential care. Mother is entitled to the personal advice of an
independent solicitor who may be the only person seeking to represent her own
interests.
Probate and estate practitioners seldom go near any court other than the
Probate Court which does not generally require a personal attendance. Yet all
relevant areas of expertise must be developed if a full service is to be given
to the older client and this includes willingness to take up issues and litigate
for the client when necessary. I became acutely aware of this whilst speaking
recently at an Action against Elder Abuse Conference in Liverpool. What a pity
that so few lawyers show their faces at these conferences! Lawyers dealing with
domestic violence and crime would have been more at home than probate
practitioners. Is it only social workers who are concerned about the abuse of
vulnerable older people, or do solicitors prefer not to acknowledge what is
going on? It is all very well for a probate practitioner to run a few enduring
power of attorney files amongst the estates, but what does he or she do when
there is a dispute in the family or money is applied for doubtful purposes? The
matter then takes on a dynamic all of its own and appropriate action must be
taken to protect the client. How many lawyers who handle this work are able to
recognise these situations and take effective action?
Conclusion
It is my belief that the
legal profession has only just begun to realise the nature and extent of
"elderly client practice". Although the clients are old the approach to their
needs is comparatively new. It will develop over the years to the extent that
what is being done today will appear as inadequate and inappropriate to future
generations of practitioners as family law when created as a distinct subject in
the late 1950s now appears to the specialist family practitioner. But at least
development of this discrete area of practice has begun and is in the hands of a
group of practitioners dedicated to it. They will start with a relatively clean
slate and not be dominated by an established way of doing things, whether that
of probate practitioners or otherwise. If only I knew what elderly client
practitioners will be doing when I myself am elderly in 2035 - well, perhaps
2015!
Gordon
Ashton, the author is a district judge and member of the Law Society's Mental
Health & Disability Sub-committee. He has written several books about older
and mentally disabled people and the law
