All families have their challenges. Siblings fight. Children demand fairness. Parents lay down the law. When the family dynamic enters the legal realm, in addition to the law, attorneys must arm themselves with a bit of psychology know-how, too.
Elder law attorneys rely on a heightened degree of human interaction. Focus on the human element is more heavily emphasized in this unique area of law because the tasks within it involve family dynamics, familial history, finances, healthcare, and strong emotions. It is all too common for confusion and disputes to arise, from asset disagreements to caregiver misunderstandings. The very act of creating a plan for one’s life and death may create conflict among family members, partners, and friends of the planner.
Attorneys focusing on areas of elder law can lessen, and even prevent, many potential complications through careful navigation of the particular family’s distinctive complexities. The key to mitigating future challenges and familial fighting can be summed up into one word: COMMUNICATION. Most conflicts arise when parties are not on the same page.
Causes of Family Conflict
Family conflict is often caused by an unequal burden of care. One child cares for Mom or Dad on a day-to-day basis and is resentful of the other sibling who lives miles away and is seemingly uninterested in mom’s health. It can be a financial and emotional strain to be a caretaker of an elderly parent, and it can take time away from one’s own family. If there is an uneven responsibility of care among siblings, this can foster anger and ill will.
Another obvious way in which family conflict is created is over finances. Either one family member is accused of siphoning funds from an elderly relative, or there is a disagreement over an inheritance. Distrust is easily created when one sibling is the power of attorney and the other is left in the dark. One sibling may feel that she is entitled to more inheritance because she has cared more for Mom in her final years.
Finally, family conflict arises over what type of care the elderly relative should have. Should a private nurse be hired? Can family members continue to care for Mom at home? What treatments should be pursued? Some siblings may want to expend any amount necessary for the best care for their loved one while other siblings may want to “protect” their inheritance and obtain minimum care.
Three Ways an Elder Law Attorney Can Help Their Clients Prevent Family Conflict
- Family Meetings
In familial disputes in elder law, the legal counselor may also have to act as family counselor. The very best way to manage potential conflict is to encourage your client to communicate with their loved ones about their wishes, intentions, rationalizations, and expectations. You cannot always predict the way that family members will take the news that grandfather plans to direct his entire estate to XYZ charity or that he wants to live at the most expensive nursing home possible, but a little explanation goes a long way.
Suggest that the client hold a family meeting to discuss wishes and expectations. Communication and understanding can go a long way to douse potential flare-ups before they ignite. Challenging family members are often created when they are left out of the planning process – particularly such family meetings.
You may or may not be asked to attend this get together, but if your client wishes for your presence, make sure that the family members understand that you represent the client and their wishes – not the loved one’s sense of fairness. The family should also understand that your obligation of privacy to the client continues through the meeting and beyond – allowing the family to participate in such goings on does not mean that the participant is permitted to call you for details on your client’s planning details. Finally, be sure to inform your client beforehand that by having third parties present, he or she is waiving client confidentiality as to that information being discussed.
If an attorney does not have the luxury of promoting client-family communication early on, interactions can be more complicated. Challenging family members, who are often well-intentioned, frequently interject themselves into elder matters. As an attorney, navigating these turbulent waters requires patience. Even irrational loved ones deserve respect. Remember that people respond more favorably when they feel that they are being heard. You may not be able to solve all of the family’s dilemmas, but you may be able to prevent hostilities from turning toxic.
Always push for civility between the client and their loved ones when they are meeting with you, and encourage it to continue during conversations outside your presence as well. Above all, always remember your duty of confidentiality to your client and establish specifics for whether you are permitted to share information, what the information is, with whom you can discuss it, as well as when this permission begins and ends. - Disability Documents
Having a financial power of attorney, a healthcare power of attorney, and a living will in place is essential for an elder law client. Ask your client if he or she is comfortable sharing these documents with friends and family to explain why they have chosen the people and options they did. Having family members already comfortable with certain decisions and who will carry out those decisions takes care of a lot of potential conflict. Having decisions made in advance, and having the opportunity for opinions to be voiced about those decisions, reduces the likelihood of future conflicts in those areas. - Mediation
If tensions rise beyond a moderate level, encourage mediation. It provides an atmosphere that the client-attorney relationship cannot offer. A mediator may hear all sides and is permitted to interact with the parties in a way that would present conflict of interest scenarios for the client-attorney. Mediators are a neutral party and are not on anyone’s side. Disgruntled family members may be more receptive to the opinions of this neutral party, as the mediator is not in the client’s corner like the attorney might appear to be.
If there is any one thing that an attorney can do to handle challenging family members in a client’s case, it is to encourage open communication. Encourage the parties to discuss their concerns, intentions, reasoning, and frustrations with one another. Encourage the client to explain to jilted loved ones why they opted for the courses they did. Stand behind your client and their decisions, while reminding them of the importance of communication and understanding.
