Monday, July 15, 2013

In Practice: Saying It to Seniors

Practitioners in both the legal and medical world have discovered that there is an optimal and suboptimal way to talk to senior clients. These insights into effective communication are especially helpful for lawyers dealing with clients in stressful situations who need to solicit cooperation without frightening or overly worrying their clients. Senior communication skills are vital to anyone who deals with aging clients in their legal practice, including corporate, estate planning and litigation.

This article is reprinted with permission from the July 11, 2013 edition of The Recorder.

by Yvonne Troya

We often struggle to explain the befuddling behavior of our elderly clients. Why is my 91-year-old client so preoccupied with what will happen to his cherished philosophy book collection upon his passing? Why did our client Mabel grill my students about their hometowns and undergraduate alma maters before agreeing to our clinic's free legal services, taking copious notes of every response they gave? Why do some of our senior clients dwell on stories about their past that hardly seem relevant to their need for durable power of attorneys for finances or health care?

Fortunately we have some answers, thanks to David Solie's thoughtful book, How to Say it to Seniors. This is required reading for clinic students as they prepare to represent elderly clients with advance planning and other legal issues.

Solie recharacterizes the life stage of the elderly. He posits that as we enter old age, we enter a different developmental stage. Solie describes seniors as having two driving, and sometimes inconsistent, goals: maintaining control and establishing legacy. It has been crucial to the functioning of our elder law clinic to understand these drivers to best interact with our clients, interpret their actions, and deliver the best legal advice.

Many of the confusing behaviors relate to our clients' efforts to maintain control. This may manifest as controlling the conversation through rambling or keeping the topic confined to a few specific things: home, doctor and former career in the Air Force. Or it may mean a client is very sensitive to communication happening on her specific terms, with meetings set up in writing instead of by phone.

Why this need to maintain control? Solie explains the gut-wrenching loss of control that seniors face every day. Their bodies are breaking down. They may be the same vibrant people as before, but they are trapped in bodies that don't work the same anymore and are declining daily.

Seniors also suffer from loss of their peer group. Imagine what it would be like to frequently lose multiple close friends, even a few per year. Consider all of the shared memories that you would carry on, alone. Another significant loss seniors face is financial independence. And this often goes hand in hand with a loss of identity tied to the loss of their careers.

Now our clients' behavior makes more sense. In the face of devastating losses, older adults try to keep whatever control they can over even the minutiae of their daily routines.

So how do we make our client work most effective? It is crucially important to create space for the clients to move at their own pace and feel that they have control over the process. This requires patience and time upfront, but will often save time later. A client is less likely to come back six months later wanting a completely new estate plan because she didn't feel heard.

In our clinic we implement active listening, which despite sounding "soft" is razor-sharp effective. Active listening requires the listener to respond back to the client's statement by reflecting his feeling with some interpretive twist, like: "Sounds you feel that ..." This is different from passive listening because it explicitly communicates to clients that you have heard and understood them. It demonstrates empathy and understanding and lacks judgment. Also, many of our clients are still undecided about certain issues when they come to see us. This process helps them to come to their own, uncoerced decisions. This skill has been incredibly effective in securing our clients' buy-in to the process and eliciting critical facts that may not have surfaced, about family dynamics, undue influence and more.

Finally, we assure our clients they are in charge and that the purpose of this whole process is to support them. My students say, "You should draft an advance health care directive so that you can maintain control of your own life so other people aren't making your personal decisions for you." They'll also remind clients, "You're the boss, so what would you like to talk about next?"

According to Solie, the second developmental driver involves the need to establish legacy, or undergo a life-review process. This means that seniors may be preoccupied with thinking about the past and making sense of it. They may be ruminating over past decisions, regrets, victories and other circumstances. This manifests with stories from the past that are not even tangentially related to the legal topic at hand.

We have found that active listening and asking open-ended questions assists communication with these clients. It is surprising how often the stories that initially appear unrelated shed light on the true issues at hand. It also builds trust, which is something few seniors have for lawyers. One client was so disinterested and distrustful in the advance planning process that she barely responded to questions posed by the law students. However, two meetings in, she waxed on at length about her garden. The student let her speak until she was finished. As she spoke about her garden, she came to the realization that since she needs help to garden now, why shouldn't she also get help managing her finances, too? Her demeanor completely changed from that point forward and she became engaged in drafting her own durable power of attorney.

When we were able to set aside our own agendas and listen to the stories behind our client's used philosophy books, we realized that a central piece of this client's will needed to include a donation of the books to a university philosophy department and could not just be left to an executor to dispose of and possibly give away to a thrift store. Once we included specific language to this effect, our client was able to move on to discuss other issues he had been unable to previously.

Many of us live and work at a frenetic pace and expect our elderly clients to fall into line with our expectations and time constraints, leading to joint frustration. However, by understanding of our clients' need for control and support of their legacy, it is not difficult to change this dynamic to have more productive, life-affirming meetings with our senior clients.

Yvonne Troya is a clinical professor and legal director of the Medical-Legal Partnership for Seniors Clinic, a project of the UCSF-UC Hastings Consortium of Law, Science, and Health Policy of UC-Hastings College of the Law.

In Practice articles inform readers on developments in substantive law, practice issues or law firm management. Contact Vitaly Gashpar with submissions or questions at vgashpar@alm.com.

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