The Ethical Intersection of Elder Law and Elder Care Practices

Abstract

Clinical geriatricians and other healthcare providers who care for older adults are at times put in situations outside of their elder care settings. Elder law is one area that sometimes overlaps with elder care. Elder law is the practice of law that addresses the legal needs of older adults. Some of the common legal documents executed as part of an elder law practice are wills, trusts, transfers of property, living wills, and healthcare proxies. It is not as important for healthcare providers to understand the intricacies of the above-mentioned documents as it is to understand that all of the above are important legal documents that can have significant consequences and are a means for older adults to put their wishes into writing. Often, and many times because of convenience, healthcare providers are asked to witness the execution of these documents. This letter aims to touch on some general ethical points before one agrees to serve as a witness in the execution of a legal document. Before agreeing to take part in the execution any of the above-mentioned documents, it is important to understand the four “Cs” of elder law practice:1 understanding who the client is, understanding the importance of confidentiality, the potential of conflicts of interest, and questions regarding the capacity of the client.1 The client is often your older adult patient in the hospital setting or a resident in the senior living center. Litigation with respect to elder law often involves determining whether the client had legal capacity to execute the document in question and whether there were any conflicts of interest. Legal capacity exists on a continuum and is context specific.1 That is, the standard of legal capacity is different with respect to the document being executed. Affidavits are sometimes executed along with the primary legal document to reassure the courts that legal capacity was met. Before signing as a witness to any of these documents, be sure to carefully read the affidavit itself because it often outlines some of the capacity standards. If there is an attorney present, ask the attorney for clarification before signing as a witness. Does the client truly understand the consequences of executing a given document, and is the client mentally able to make such decision? If there is any question with respect to capacity, one should not take part in the execution of the legal document. Like geriatric practices, elder law practices also often involve family members. Similar to conducting family conferences in a geriatrics practice, when taking part in the execution of a legal document, it is always important to remember who the client is. A conflict of interest may arise when an adult child seeks arrangements for a loved one, but the child clearly will gain from the execution of a particular legal document.1 It is important not to get distracted with the needs and instructions of family members but to speak directly with the client (your patient). If there is any question with respect to conflict of interest, one should not take part in the execution of the legal document. It is helpful and often convenient for healthcare providers in older adult settings to serve as witnesses to the execution of important legal documents, but before agreeing to serve as a witness, one should be aware of the four Cs and make sure that the client's (patient's) rights and needs are not being compromised. Conflict of Interest: None. The University of Rochester CTSA award KL2 RR024136 funded this work. Author Contributions: Both authors contributed significantly to the research and writing of this paper. Sponsor's Role: None.