Getting involved in elder law can be perilous.
I have finally concluded a case made my blood curdle. You think you are doing the right thing, and then, blam! Proving once again that no good deed goes unpunished.
It all started last June. I represented an Italian nephew (he happened to be a professor) that was appointed a successor co-trustee of his Great-Aunt's trust. Great Aunt - San Mateo; Nephew - Roma. What fool set up that estate plan, you ask? Let's just call him the successor co-trustee (!) and the Great Aunt's own lawyer. Yup, Mr. Elmer Fool, Esq.
Little did I know that I would get hauled into a problem where Elmer was trying to have his own client, the Great Aunt, declared incapacitated so he could take over as co-trustee. Nephew did not want to go along with the plan. So Baker & McKenzie figures 'Myers can handle it,' so they refer it to me. How is it that these iron filings constantly end up stuck to my sympathy magnet? Since the nephew lived in Rome, I'm blaming the Pope.
Step #1: attend the hearing. There's Elmer, arguing a private professional Trueheart should step in. Normally a good idea, but Elmer won't relinquish his role as successor co-trustee or as lawyer for the Great Aunt, taking the position she is incapacitated, and no other lawyer is allowed to meet with her to defend her, because - after all - she is a represented party. So Elmer and Trueheart are appointed temporary co-trustees. I convince the Court to allow me to meet Great Aunt, and Court insists the Court Investigator be present and "run the meeting." Fine, cool.
Court Investigator and I meet with Great Aunt. She seems fine, with it, understands the proceedings, wants lawyer out of her life and wants my client in. Doesn't know private fiduciary from Adam, doesn't want her in her life. Meeting concludes, hopefully Investigator will get the report in and all will be righted.
Investigator goes on vacation. No report filed. Great Aunt starts calling me. Great Aunt has Nephew call me, and then has neighbor call me: "please come over. I need to speak with you." I explain to nephew and neighbor we need an independent lawyer, not me, to meet with her to avoid appearance of conflict of interest. All agree, and I am to show up on a weekend day (since I am busy during the week) with independent lawyer to meet with Great Aunt.
I check the WealthCounsel directory, find a lawyer a few miles away, and beg her to meet me at the house on a Saturday. She agrees. Perhaps the world will be righted and everyone can have their own lawyer again.
Nothing remarkable about the meeting - she meets, I use the opportunity to interview the neighbor and the caregiver. Before I leave, I chat with the Great Aunt for minute, with the lawyer present, and all is well.
Elmer has a secret grapevine to the home. Caregiver is in Elmer's pocket. She calls Elmer, who then proceeds into court with finger waving, accusing me of all manner of ill will. Magically, Great Aunt is drugged the afternoon of the hearing (alleged UTI) and cannot attend. Judge Impetuous decides I have "crossed the line" and "engaged in elder abuse" by trying to get Great Aunt her own lawyer. Elmer demands an apology from me, and Great Aunt's world is again in turmoil. Judge Impetuous demands new lawyer return her fee, and consign Great Aunt to the court's special "panel" of court-annointed attorneys.
The Investigator returns from vacation weeks later, and several weeks later submits his report, then several weeks later the attorney is appointed, and several weeks later the attorney asks me to introduce him to his new client. OK, fine. I again travel to San Mateo to introduce Great Aunt to an independent lawyer. No mischief from caregiver this time. But two months have passed and nothing but money has been spent.
In the meantime, Great Niece (who is a lawyer) arrives from Rome and the contours of a settlement are worked out with the private professional Trueheart and the Great Aunt.
Great Nephew and I discuss disqualifying the judge, who has decided he and I have conspired to commit elder abuse against his Great Aunt by trying to get her a lawyer. I file the motion, don't charge the client.
But wait! Fiduciary Trueheart now decides she needs her own lawyer. There aren't enough professionals on the payroll. The whole process begins again, and tens of thousands of dollars in attorneys fees later, we end up exactly the same place we did at interim settlement. Its the story of adding lawyers to cases. Everybody's got a right to. In bankruptcy and estate practice, everybody's got a right to spend someone else's money.
Scroll forward. My client predeceases his Great Aunt. Everybody petitions for their fees - Elmer, Fiduciary, fiduciary's lawyer, court-appointed lawyer and me. Everybody else (but me) gets their fees approved by the Court. My fees are determined to be "personal to" the now-deceased Great Nephew. No fees for Peter.
Elder law is tricky. You can be mercenary. There are ways to get paid. Trueheart's lawyers filed a conservatorship petition, for example, and the successful filer can get their fees reimbursed. I could attack everyone else's fee request, for example, and claim I create some benefit for the trust. None of which I find very efficient (the conservatorship wasn't really necessary, since a trust existed), so I try to avoid it. But this was one of those cases where you cannot do the right thing AND get paid at the same time. If you practice elder law, get used to it.
Moral of the story: when not in Rome, do not do what the Romans do.
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