Clients of a Certain Age: Particular Issues when Representing the Elderly

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A recent South Dakota Supreme Court decision serves as a reminder of some of the ethical issues and pitfalls when representing an elderly client.  Unlike some of our posts which apply to a particular specialty, the potential for hiccups arising from representing the elderly impacts all professionals: accountants and attorneys, real estate professionals, brokers of all sorts, to name a few.  The lesson is often the same: be particularly wary when representing an elderly client to avoid a potential malpractice suit or ethical problem.

Bailey v. Duling provides a classic example of a professional taking advantage of the elderly for personal gain, and breaching several ethical and professional rules along the way.  The facts are uncomplicated.  “Curley” Haisch was the 90 year-old owner of one of the largest ranches in South Dakota.  Defendant Duling served as Haisch’s financial advisor, and his broker, and his real estate agent(!). Duling convinced his client to transfer the ranch into a trust and then to sell the ranch to Duling.  It was later discovered that the trust contained multiple errors and the Trustee sued on theories of negligence, negligent misrepresentation and breach of fiduciary duty.  A jury returned a verdict in excess of $1.5 million in favor of the trust and against Defendant Duling.  This decision is now on appeal.

The Bailey case is not an isolated incident but an example of a much bigger problem as the first wave of baby boomers turn 65. There has been a surge of attention, including nationwide legislation, geared toward protecting the elderly and overseeing the country’s aging population. Accordingly, this is an issue likely to face many professionals who must remember that representation of the elderly contains particular traps.

Good intentions and entirely appropriate representation may appear improper when viewed in hindsight.  Moreover, ethical issues abound in the representation of the elderly. Since the appearance of impropriety is often the test to determine whether a professional ignored a potential conflict of interest (as did Duling), or was overly influential, or otherwise took advantage of an infirm client, the professional must take extra risk management steps during the engagement.  When necessary, the wary professional should consider written waivers, should document important conversations, and should recommend consultation with other professionals if appropriate.