Lise Barry, Macquarie University (Australia); Margaret Hall, Thompson Rivers University (Canada); Mary-Ann de Mestre, John de Mestre & Co Pty Ltd (Australia); and Heather Campbell, LLM student, University of Saskatchewan, College of Law (Canada).

Linda Haller, University of Melbourne (Australia) (Moderator)

Ethics in Elder Law 

Increasingly lawyers are called upon to work with older clients as they navigate the law associated with aging. This includes appointing guardians and substitute decision makers, engaging in advance planning around medical care, accommodation and end of life decisions, assessing the legal capacity of clients, and dealing with allegations of elder abuse.  In this program, the proposed papers provide an overview of empirical research in this area from Australia and Canada including: 1) The Lawyers' Role in Assessing Older Clients' Capacity for Legal Decision Making; 2) The Lawyers’ Role in Preventing Financial Abuse of Older People; 3) The Intersection of Law and Medicine in Constructing Capacity; and 4) The Lawyer’s Role in Investigating Elder Abuse.

Lise Barry: Capacity Complaints at the NSW Office Of Legal Services Commission
Lawyers are increasingly called upon to work with older clients who may have a cognitive impairment and whose capacity is in doubt. In NSW Australia, there is conflicting guidance available for lawyers who work with older clients in this situation, and we know very little about how lawyers go about this process. This presentation will present the findings of the author’s original research examining the capacity complaints files of the NSW Office of Legal Services Commissioner from 2011 to 2013. These files provide insights into the complaints process itself, whilst at the same time, highlighting some of the pitfalls for lawyers unprepared for dealing with elder clients and their families. Drawing on the complaints files, the author will highlight some of the practises of capacity assessment and the important role that lawyers play in promoting the autonomy of vulnerable older clients, and also in protecting them from abuse. The author concludes by discussing some proposals for better clarifying a lawyer’s responsibilities when taking instructions from at-risk elders and proposes some further recommendations related to legal education.

Mary-Ann de Mestre: Preparation, Execution and Use of Powers of Attorney

The responsibility of a prescribed witness to an Enduring Power of Attorney goes beyond ensuring the signature of the principal executing the instrument is genuine. The prescribed witness is required to explain the effect of the instrument, to witness the signature of the principal and to certify that the principal appeared to understand the effect of the power of attorney. If doubts are raised about the principal’s understanding of the “effect” of the Enduring Power of Attorney, the prescribed witness has not only a statutory obligation but also an ethical obligation to refuse to witness and certify the instrument. That obligation, in theory, extends to when the witness thinks the principal may be signing the instrument under duress, undue influence or pressure from another person. Similarly, a legal practitioner has an ethical obligation to ensure that the principal has the requisite “decision-making capacity” and is not “incommunicate” before execution of the instrument. Any departure from these ethical standards has the potential to result in the exploitation of the principal whether by fraud, breach of fiduciary duty, unconscionable conduct, unjust enrichment or undue influence being exerted over the principal to obtain a benefit via the instrument.

A number of prescribed witnesses (as well as trusted appointed attorneys) are not sufficiently familiar with the procedure or the potential consequences associated with the nature and effect of such an instrument. In the Supreme Court of New South Wales, there are a number of cases that attempt to deal with the consequences associated with the misuse of a power of attorney, either by a prescribed witness or the appointed attorney. This paper seeks to explore some of the ethical challenges associated with the preparation, execution and use of powers of attorney, specifically in relation to the potential for financial exploitation and abuse of older persons. The presentation is an extension of the author’s research recently conducted for a submission to the Parliament of New South Wales Inquiry into Elder Abuse.

Margaret Hall: Guardianship for the Old: Ethical Implications of the Mental Capacity Construct

Mental/decision-making capacity is a legal fiction or construct that works differently, for the purpose of achieving different objectives, in different contexts. In the context of guardianship for the old, the identification of capacity is largely controlled by medical actors. This paper suggests that medical assessments of “mental capacity” carried out in connection with guardianship applications for the old are more accurately described as evaluations of vulnerability. Contra mainstream legal narratives, medical actors are not “doing it wrong”; rather, the mental/decision making capacity construct is fundamentally incoherent in the context of guardianship for the old, and cannot be measured with any accuracy or consistency. The need to articulate vulnerability in the legally constructed language of mental/decision-making capacity (i.e. to describe vulnerability in terms of capacity) gives rise to significant ethical and practical difficulties for all players in this system. This paper concludes that the legal rules which create and regulate systems of guardianship for the old must be brought into alignment with the identification/evaluation of vulnerability. The paper includes a discussion of how, in the meantime, lawyers working with older clients may incorporate this understanding of the limits of the mental capacity construct in the context of guardianship for the old (as opposed to discrete transactions such as wills) into their practice to reduce these practical and ethical difficulties.

Heather Campbell: Hiring Private Investigators in Elder Abuse Cases: Ethical Considerations for Lawyers

As our population ages and societal awareness about elder abuse grows, lawyers are increasingly encountering clients who express concern that an elder loved one is being mistreated. These allegations arise in various contexts, and sometimes, for ulterior motives. And as more and more private investigators are now offering elder abuse investigation services, it can be tempting to hire a modern day Sherlock Holmes to conduct surveillance and gather information. However, using a private investigator to investigate alleged elder abuse triggers several ethical issues for lawyers. This presentation will explore various situations in which a private investigator may be a legal but unethical tool to investigate suspected elder abuse. As Canadian boomers’ potential inheritances are projected to be the largest intergenerational transfer of wealth in history, particular attention will be paid to disputes that involve adult siblings battling for control of their aging parent’s financial affairs. The presentation will conclude with a discussion of strategies lawyers can take to minimize ethical pitfalls.

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