There are now approximately 40 million Americans over the age of 65, and this number will continue to grow as a percentage of the U.S. population. Estate planning practitioners should not and cannot ignore these statistics, as this older population faces a wide range of distinct legal issues. In addition to traditional estate planning, older clients also face nontraditional issues such as understanding and qualifying for various governmental benefits, implications of second marriages, and planning for unique health concerns and diminishing capacity. Nonlegal issues, such as making provisions for finances, tax planning, and medical treatment, will also be important considerations for older clients. There are inherent challenges in representing older clients.
Older clients can be vulnerable and the subject of undue influence.
They can be in failing health, which can diminish their ability to make decisions and articulate those decisions. To complicate things further, the older clients' legal issues may affect the interests of other family members. Closely held family businesses can raise problems with differing opinions and priorities and ensuring that there enough other assets to go around to children not involved in the family business. When meeting with older clients, it is common to discover the entire family in the conference room. A practitioner must carefully evaluate the situation and be conscious of the underlying principle that the attorney is representing the older client, not the family members.