One Practitioner’s Perspectives on “The Practice of Elder Law”

Stuart Bear, a practicing attorney and member of the Minnesota State Bar Association’s Elder Law Section, has written an interesting first-person account of “The Practice of Elder Law” for a 2016 issue of the Mitchell-Hamline Law Review.  It turns out the 2016 piece is an updated version of a similar article he wrote for the William Mitchell Law Review in 2002, with the same title.

In both versions Bear begins with a narrative about a family member’s call to ask him legal advice on how to handle care issues following an emergency hospital admission for the caller’s mother. Many of the events Bear relates will resonate, both with the public (especially those of a certain age) and lawyers.

At the same time, I find that some of Bear’s words — in both versions — could be a springboard for a broader discussion with law students and elder law specialists.  For example, he chooses to label the family member initiating the contact as “Responsible Daughter,” and he refers to other siblings as “responsible sons.”  What is the meaning behind this phrase?  Is he referring to “morally responsible,” “financially responsible,” or just generically a “good” person?  

Further, in both versions, he offers an important discussion of how he handles potential conflict of interest issues in representing the elder parent where offspring are involved in client meetings and decisions.  In the 2002 version, Mr. Bear writes about alternative choices in identifying his client:

This rule [referring to Rule 1.7 of the ABA Rules of Professional Conduct as adopted in Minnesota] is clear that should I choose Mom as my client; it is she whom I serve and no other family member. I take my marching orders based upon Mom’s goals and objectives, serving her sole interests.

 

Suppose, however, that Mom is not so definitive in articulating her goals and objectives. It may be possible for me to represent the entire family, in light of rule 2.2 of the Minnesota Rules of Professional Conduct, which addresses the lawyer as intermediary.

In the more recent 2016 version of the essay, which is the version I first encountered on Westlaw, Mr. Bear cites a different rule for his authority to represent “the family.” He points to Rule 1.14 on representation of a client with “diminished capacity.”  He writes: