According to the National Council on Aging, 1 in 10 elders in the U.S. have experienced some form of abuse, yet only 1 in 14 is reported. It is a sad reality that there are elders in our communities that suffer from various forms of abuse. Financial, physical, and sexual abuse are common examples of the ways in which our older generation is exploited and endangered. Unfortunately, elder law attorneys are likely to encounter such a client at some point during the course of their careers.

Every lawyer is, or definitely should be, familiar with the Rules of Professional Conduct for the states in which they practice. A primary tenet of lawyering is the duty of an attorney to keep their client’s disclosures confidential. With that in mind, how does an attorney balance the need to keep client information confidential with a moral or legal requirement to disclose potential elder abuse?

Do the duties of confidentiality prevent disclosure?

Once upon a time, the legal field relied on face-to-face interactions, loads of paper files, and gallons and gallons of ink. This is not so in the current day and age. Our legal documents were once handwritten, then typed and printed, and are now becoming a series of ones and zeros. Most attorneys now harbor a hybrid mix of paper and electronically stored data. For elder law attorneys, shifting their historically physical procedures into electronic practices is a foreign concept – a concept now coming to fruition in the form of electronic wills.

What are Uniform Acts?

Our nation is made up of sovereign states – meaning that each state governs itself separately from its neighbors. Although Federal law looms over the union generally, each state has leeway to vary its specific laws to reflect the needs and values of its population. The separation between states and the federal government also allow for discrepancies – and sometimes competing positions – on hot topics like medical marijuana or gun rights.

For a promissory note to be used successfully as a strategy for long-term care planning, it must meet certain requirements. 

The Nebraska Court of Appeals filed a Memorandum Web Opinion in 2019 regarding a failed attempt by a Medicaid applicant to use a promissory note to exclude a portion of her assets from eligibility considerations. Appellant argued that the promissory note in question should not have counted towards her Medicaid asset limit. The Court, however, found that the promissory note did not meet the requirements of 42 USC § 1396p(c)(1)(I) regarding acceptable or exempt transfers of assets for Medicaid purposes.

Applicant Lorena Freeman

Freeman entered into long-term care on February 1, 2015. She applied for Medicaid benefits, with the help of her attorney, on March 31. Her income included Social Security payments and an annual income from her interest in a rental. On March 27, she had disposed of more than $12,000 and executed a promissory note, “FOR VALUE RECEIVED,” as a loan to her lawyer for an additional $5,547. She also had other limited resources less relevant to the court’s decision.