Article on Understanding the Ethics of Empowerment: An Elder Lawyer’s Challenge or Obligation?

The idea of empowerment in today’s society and culture often has a very different meaning. It encourages individuals to assume overall and unfettered responsibility for managing their own destiny and future. Choice has become the watchword for the managing of almost every issue life presents. From choosing the way in which one takes morning coffee, manages investments, or shops for a new car, the real-time world encourages us to have it “our way.”

This process has been culturally transformative, developing a version of empowerment which focuses only on an assumed ability to control one’s own destiny and make one’s own choices, free from the “indoors” in which “each one dwells.” We are told no one should have the ability to tell “us” what to do. We control our own destiny.

It is in this environment that the lawyer must exist and co-exist, understanding the past but being prepared to confront the future. For example, the idea of “empowerment” has always been part of the estate planning vocabulary. Ways of providing an individual the ability to control or influence the outcome of property transfers have deep roots within our jurisprudential culture. The processes which govern such transfer, however, have traditionally been strictly prescribed and controlled by legal precedent. That has all changed.

The lure of contemporary empowerment has encouraged individuals to “avoid” probate, adopt alternate methods of wealth transfer, and “secure” their own future. Once a “spectator” in the estate and financial planning process, individuals are encouraged to manage their own destiny. The legal system and its lawyers have thus become “adjuncts” as clients avail themselves of information and concepts previously unavailable to them.

This empowerment phenomenon has transformed the essence and dynamic of every estate planning conversation a lawyer has with a client. For example, although relatively unknown a quarter century ago, most lawyers usually include as part of their “standard” planning package, an advance directive and a durable power of attorney. Including these documents as part of a planning package provide the client an opportunity to vest individuals in whom they have trust and confidence with the responsibility to make both financial, critical care, and end of life decisions on their behalf. They also offer and provide clients the theoretical opportunity to manage and influence the outcomes of a variety of important life situations and issues.

These instruments also incorporate a powerful component that legal precedent and the common law deemed traditionally unavailable, namely the ability to delegate. The documents that form the basis of this discussion, the durable power of attorney, the advance directive, and the psychiatric advance directive allow the client to delegate decision-making authority over fundamentally personal issues to a third person. It is empowerment with a “personality.” The outcomes such delegation produce can be unique, wholly dependent upon the character and characteristics of the client, the attorney-in-fact, and a myriad of variables in which the new relationship created by these documents finds itself.

The elderly are particularly susceptible to the problems and issues of empowerment. Well-meaning children and friends are on the scene. Questions regarding what Mom or Dad might do with their estate often influences family conversations. The elderly client may, as a result, find himself or herself sitting in a lawyer’s office having their current estate plan reviewed and critiqued without an apparent need or desire to do so–at least in the elder client’s mind. Further complicating matters is the fact that the marketplace teems with well-meaning advisors who are more than willing to offer their own solutions and version of empowerment to unsuspecting, often elderly individuals, who desire stability and solutions when the acceptance of such advice may have the opposite effect.

Through it all, perhaps imperceptibly at first, the elder client may begin to feel an imperative to act when there is no apparent need to do so. This perceived pressure to act places the elder client in a potentially vulnerable position. Who oversees this process? Who ensures that the elderly client is offered the space and guidance necessary to make thoughtful and informed decisions?

This discussion will urge and argue that lawyers can and should oversee and play a significant role in this process, insuring that their clients reconnect with themselves as they consider the need for and meaning of empowerment. This is an especially important consideration in representing elders who often need an advocate and perhaps, more importantly, a counselor, to help them understand the implications and impact of a variety of choices they are asked to make regarding their future well-being.

Lawyers can only participate in this process if they understand the essence and implication of empowerment and the profound difference choice makes in enhancing the quality of a client’s life. Clients who understand and then choose what this article will describe as “the good result” are more likely to utilize empowerment as a means rather than an end. They are more apt to understand and embrace their estate plans as a reflection of who they are and what their dreams and aspirations represent. Clients who simply choose choice for the sake of choice will almost always achieve a directed result which results may express values and beliefs of someone or something other than the client.

To help understand the implication of such difference, this discussion will first consider the current and evolving elder law landscape (and do so within the estate planning context); define the good result, and then apply its application when considering the use of the durable financial power of attorney, advance directive, and psychiatric advance directive within the elder client’s estate plan.