When an elderly client needs legal advice, a specialist who can communicate even with someone who is incapacitated is vital. Chris Baker discusses the opportunities that exist in this crucial area of work

While some private practices turn away work advising elderly people, Northamptonshire-based sole practitioner Yvonne Hossack had what she calls a ‘road to Damascus experience’ when helping a campaign to stop the closure of a local care home.


Her eight-year-old daughter was off sick from school and so she had to go along when Ms Hossack was visiting the home. Afterwards, Ms Hossack asked if her daughter had been upset by the behaviour of the ‘dotty old people’. ‘She said: “Actually, mummy, they’ve all got names”,’ recalls the solicitor.


That changed everything. ‘If they had names, they were people,’ says Ms Hossack. ‘And if they were people, then they were suffering.’


Even if, unlike in other countries, elder law – as it is called in the US – is not seen as a practice area in its own right, it is a growth area that many private practice firms should not ignore. The elderly population is growing and people are living for longer. But it is an issue of professional ethics as well as commercial sense.


‘Some firms turn away this work,’ says Liz Holdsworth, a partner at Shrewsbury firm Wace Morgan and a member of Solicitors for the Elderly (SFE). ‘Private practices turn their backs on this area at their peril – not only because of [the duty to give] good advice but because it’s good business. Commercially, firms have to do it – after all, clients in connection with other areas all have parents.’


SFE has just launched a test for potential members with the aim of raising membership standards. The written paper will test knowledge of elderly client issues and ensure they are also aware of the best sources of information. Currently, to join the group, solicitors must be five years’ qualified and spend at least 50% of their time on elderly client work, or be ten years’ qualified and spend at least 25% of their time on this field.


‘Initially, we had membership based on experience because we had to start somewhere,’ Ms Holdsworth explains. ‘When you get to a certain stage, you have to think about making sure people get an idea of the important issues.’


The tests feature a series of scenarios that a law firm may face when approached by an elderly client, or by someone on behalf of that client, such as a social worker or relative. Issues include enduring power of attorney and undue influence. Whether NHS or local government funding can be applied for in care costs also arises in the tests. ‘These questions are not going to be people writing essays – it’s more to do with what things they should be thinking about,’ Ms Holdsworth says. ‘What is Auntie Flo’s capacity, has she got enduring power of attorney in place, has she got the capacity to have enduring power of attorney and if she does have to go to a care home, how will she pay for that?’


Caroline Gardner, an associate at Cheltenham firm Rickerbys and also a member of SFE, maintains taking such a test is beneficial for both lawyers and clients. ‘It can help provide assurance for clients if they can see that their solicitor has demonstrated the ability to advise in this field,’ she explains.


Rigbys is actively promoting its work with elderly clients, as Ms Gardner and her colleagues contend that specialists are needed in this often complicated field.


People are becoming ever more concerned that their estates do not get eaten up by care home fees and inheritance tax thresholds that have not been reviewed in the light of the recent house price boom. Also, Ms Gardner takes the view that elderly people are coming under ‘pressure from below’ – their children – to sort out their affairs before it is too late.


‘It’s even more important now that elderly people are independently and properly advised on all the pros and cons before taking a decision to divest themselves of valuable assets,’ she says. ‘All too often, a conflict of interest can exist between what is best for the client and what is best for their children.’


Ms Gardner is also seeing more and more cases of people living longer, but suffering from conditions such as Alzheimer’s disease that keep them from putting their affairs in order. ‘Preparing for the possibility of this happening is increasingly important and clients should be carefully advised to ensure that they authorise somebody they trust to manage their affairs,’ she explains. ‘From a solicitor’s point of view, that requires wider personal capabilities – it does require a solicitor who is a specialist in this field but also one who has the ability to communicate well with a client who may be becoming infirm.’


It is the ability to deal personally with such people that is so important in dealing with elderly people, especially those in care homes, according to Ms Hossack.


‘In advising elderly people, it is essential to meet them and be aware of potential conflict between them and their relatives,’ she says. ‘A particularly difficult area is that of money. Where the elder is incapacitated, the relative controls their capital. In my view, any person without capacity should receive legal help free at the point of need where health matters are an issue.’


Even where a person is incapacitated, it is possible to ascertain their wishes, Ms Hossack adds. But it requires patience.


Probate is always an issue when dealing with elderly clients. Richard Smithies, a partner at west Yorkshire firm Bearders, sits on the Law Society’s probate section executive committee and is a member of SFE. He is also vice-chairman of the Calderdale branch of Age Concern.


The probate section is updating its Web site to provide more information for members. ‘But I think the committee wants to expand it so that it has something for the general public,’ he adds. The site is in its infancy and the final content has yet to be decided.


Mr Smithies admits there is already a ‘panoply’ of information provided on-line in this area, with charities such as Age Concern offering as much as is possible. But to lawyers, the legal system and elderly clients are not closely linked.


‘Elderly clients just come under the umbrella of private client work, but it should be seen as an area in itself,’ he explains. And the lawyers who do the work are not getting any younger themselves, he reckons.


‘We need to get younger lawyers in,’ Mr Smithies says. ‘The schools and colleges are largely ignoring this sort of law. While the quality is not compromised, we would like to encourage more students to study this sort of thing before coming into the profession.’


Although it may be the old story of City firms proving more attractive to graduates than high street work, another bugbear rears its ugly head when it comes to dealing with elderly clients. Legal aid is a real issue, and it is making Ms Hossack’s life difficult.


‘At a recent Legal Services Commission audit, my costs were reduced by 25% on the ground that I should limit myself to 30 minutes for my initial meeting with the client,’ she complains. ‘That includes completing the public funding applications.’


In one case where she was helping a campaign to stop a care home closure, legal aid was refused and she helped raise £7,000, largely by selling campaign ribbons. But it has not been easy, and Ms Hossack has several similar cases live at the moment. ‘About 20 hours in each week is spent on arguing for funding, challenging non-payment or reduced payment of legal aid,’ she explains. ‘This week, I am selling my car to try to buy another month where I can work for my clients.’


Chris Baker is a freelance journalist