A client told a poignant story: she was involved in a disagreement over a bill she received from a local service provider. Although she produced an extensive chain of correspondence corroborating her interpretation of the agreement as to service cost, the provider disagreed with her. She shared that, despite the authority of her argument and her extensive notes, she was dismissed with the age-old age-related dismissal, “You just don’t remember.”
What is “ageism,” and why does it matter?
Ageism is the manifestation of discrimination perpetrated against a person based on age. Margaret Morganroth Gullette, a cultural critic and prize-winning writer of nonfiction, is often credited with inventing the term “ageism.” She asserts ageism is an ethical issue masquerading as a health issue. It is, she believes, our society’s last socially acceptable prejudice. But ageism, itself, is a complex term. The late Dr. Robert Butler helped develop the traditional boundaries of ageism with one of its first definitions: the so-called “Butler and Lewis definition”:
Ageism can be seen as a process of systematic stereotyping of and discrimination against people because they are old, just as racism and sexism accomplish this for skin color and gender. Old people are categorized as senile, rigid in thought and manner, old-fashioned in morality and skills [. . .] Ageism allows the younger generations to see older people as different from themselves. (Butler and Lewis, 1973).
A more modern definition recognizes ageism as impacting both young and old and focusing on any stereotype based upon age.1 We use newer terms like micro- and macro-aggression in describing its reach. Still, it manifests most acutely and persistently with the elderly. As one colleague is fond to say, “Ageism is the only form of discrimination we practice against our future selves,” which she attributes to author and ageism activist Ashton Applewhite.
And it impacts each of us in both our professional and personal lives. Ageism emerges in both explicit (direct and intentional) and implicit (unconscious) ways. The Reframing Aging Initiative—a collaboration between AARP, the American Geriatrics Society, the Frameworks Institute, and others—examines public perceptions of ageism in their summary, and rhythmically titled, report “Gauging Aging.” Their findings mirror the definition of almost a half-century ago. Older adults are seen as a cohesive “other” group distinct from “the rest of us.” This protects us in the face of our other pervasive public perception that “real” aging is a process of “deterioration, dependency, reduced potential, family dispersal and digital incompetence.”2 If we are not willing to admit we will one day be old, then we don’t have to acknowledge the “deterioration” or “dependency” we presume will necessarily accompany aging.
How does ageism impact our clients?
Ageism impacts our clients’ experience both accessing justice and within the justice system. Howard Eglit, a professor at the Chicago-Kent School of Law, has been writing on this issue for more than 15 years. In his 2004 book Elders on Trial: Age and Ageism in the American Legal System, several practice areas are identified in which ageist bias particularly impacts clients. These include guardianship, conservatorship, and elder abuse. His most recent book, Age, Old Age, Language, Law, addresses the uses and misuses of language both to create and perpetuate ageism. Words matter and language evolves, even when used to discriminate.
In addition to Professor Eglit, Professor Linda Whitton of Valparaiso School of Law has long examined the issue of ageist bias in decisions related to guardianship orders and related capacity determinations. She is a national leader with regard to surrogate decision making. Her research paper “Re-Examining Elder Law Practices” adopted a standard for assessing whether statutes or judicial opinions reflected ageist bias more than 20 years ago.3 She urges one to consider “whether old age was used unreflectively to determine or predict characteristics of individuals, rather than merely to describe their chronological age.” Thus, if you write or you read a line such as “given his old age, Mr. _____ is in need of a conservator,” you can learn to immediately discount the naked assertion, regardless of any implicit acceptance of the premise. As our laws require, there must be some incapacity resulting in the need for protection or supervision.4 Age is not an incapacity. Age-related mental health issues or physical issues may present a need for court intervention in appointing a surrogate decision maker, but age—standing alone—means nothing legally. Increasingly, there is a legal movement substituting surrogate decision making with supportive decision making in an effort to focus on “less restrictive alternatives.” Our Minnesota statutes also require these alternatives be addressed prior to the imposition of a guardianship or conservatorship, for that matter.5
Forty years ago, the American Bar Association recognized these—and other—important concerns by establishing the Commission on Law and Aging (COLA), an interdisciplinary approach “to strengthen and secure the legal rights, dignity, autonomy, quality of life, and quality of care of aging persons.”6 Much of COLA’s current work centers on supported decision making, which includes increased attention to less restrictive alternatives to plenary guardianship or conservatorship.
What ethical considerations are necessary?
One significant consideration for those who represent older adults concerns inquiries regarding the identity of the client: if I represent a person in a discussion regarding long-term care or reimbursement planning who accesses my services as an attorney-at-law via an attorney-in-fact acting in their best interests, from whom shall I take direction? This complex question requires individualized analysis, but the Minnesota Rules of Professional Conduct provides some guidance. In her article “When Someone Else Pays Your Bill,”7 Susan Humiston, director of the Office of Lawyers Professional Responsibility, identifies both Rule 1.8(f), regarding current conflicts of interest, and Rule 5.4(c), regarding lawyers’ independent professional judgment, as applicable. These rules require informed consent by the client, independent professional judgment, and the maintenance of confidentiality in accordance with Rule 1.6.
While it may be challenging in the engagement process to structure representation in this manner, it is certainly possible so long as the lawyer communicates clearly with all parties. Informed consent as to the possibility for conflicts and the nature of representation directed by the client (vs. the payor) is critical. Humiston succinctly observes the best practice is to codify conversations as to consent in writing in an engagement letter; and to create a separate writing informing the payor of the parameters of representation. These writings document lawyers’ processes in securing informed consent and remind the client and payor the attorney will represent the client, but not the third-party payor.
Relatedly, this question arises when representing clients with diminished capacity. While presuming capacity is an important initial step in responding to manifestations of ageism, it is nonetheless important to know where guidance is available should one be engaged on behalf of a client with diminished capacity. Minnesota’s Rule 1.14 discusses this, directing practitioners to look to the client first, regardless of capacity. Comment [1] to that rule observes “. . . a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being.” This can be the case even when clients have surrogate (or substitute) decision makers.
Professor Nina Kohn explores these dynamics in her comprehensive treatment “Whom Do You Represent: The Role of Attorneys Representing Individuals with Surrogate Decision Makers.”8 Kohn makes a distinction between clients represented by an agent (or attorney-in-fact) under a power of attorney, and a client represented by a court-appointed guardian or conservator. In her nuanced analysis, Professor Kohn observes a tension in the Comments to Rule 1.14; Comment [2] instructs the attorney to afford the “represented person the status of client,” while Comment [4] directs the attorney to “look to the representative for decisions on behalf of the client” if a representative has been appointed. Kohn suggests reading Comment [4] narrowly: the standard default should be to maintain normal attorney-client relationships with limited exceptions (including taking direction from someone other than the client). This recommendation is consistent with an effort to limit the impacts of ageism: centering the client in the face of other variables.
For many seasoned elder law attorneys, a fruitful attorney-client relationship comes naturally despite these complexities. But to grow the field and instill confidence in practitioners new to these and related practice areas, support in navigating these challenging questions while simultaneously avoiding manifestations of implicit bias will be necessary. Many of us have heard from our older clients about their experience being ignored in a conversation, with questions from service providers directed at younger companions. We can avoid perpetuating this iteration of ageism with thoughtful, intentional approaches in our engagements with clients. Considerations such as the length, location, and timing of meetings; availability of appropriate transit or transportation options proximate to meeting sites; and sensitive use of technology including modified or amplified audio or written materials with readable font sizes are straightforward steps practitioners can take to successfully meet client needs regardless of age.
Access to just outcomes, however defined, is also a concern in instances of potential abuse, neglect, or financial exploitation. Attorneys working with an older client may learn of the actions of others borne out of ignorance, arrogance, greed, or based on common misperceptions of an older client, that threaten the independence and rights of the older client. Although attorneys are not mandated reporters under the Minnesota Vulnerable Adults Act, the Minnesota Department of Health states “[i] f you have witnessed or know of a vulnerable adult who has been the victim of physical or mental abuse, neglect, financial exploitation or unexplained injuries act now to file a complaint or report an incident.”9 Therefore, it is important that attorneys working with vulnerable adults—which may include the elderly, but is not limited to that population of clients—be familiar with these rules. Being an attorney does not require you to report concerns, but it also does not bar you from reporting legitimate concerns.
Even when clients are able to achieve safety, their own needs and expectations may not be taken seriously by systems responding to their reports. Indeed, this dynamic contributes to reporting barriers impacting older victims so profoundly that only one in every 24 cases is reported to authorities, as demonstrated in a prevalence study conducted by the State of New York, Lifespan, and Weill Cornell Medical Center.10 The Stanford School of Medicine describes barriers to disclosure our clients may face: incredulity; belief they will be abruptly institutionalized; or concern their decisional capabilities will be questioned or they will be deprived of their right to self-determination. 11 These real concerns of older clients point to the power of ageism to silence victims of maltreatment, or even crime.
How does ageism impact practitioners?
Within the legal profession, a consequence of ageist bias can be easily seen in the presence of mandatory retirement ages for judges. Since 1973, Minnesota requires judges to retire at the age of 70. Minn. Stat. § 490.121, subd. 21d. Although litigation has been brought by judges who have reached 70 and are fully capable of still performing judicial functions—and who even may be brought back after their 70th birthday to serve as a senior judge without an age barrier—the Minnesota Supreme Court has supported the “legitimate state interest” the Legislature “advances” through such legislation. In Saetre v. State, the Minnesota Supreme Court held that: “the clear intention of Minn. Const. art. 6, § 9 is to empower the legislature to develop a comprehensive plan for the retirement of judges, not strictly limited to a provision of benefits, but also to include a method and procedures designed to facilitate the orderly retirement of those individuals who have so ably served this state. A mandatory retirement provision is an appropriate component of this comprehensive plan.” Our collective failure of imagination as to how we might “facilitate . . . orderly retirement” can limit our access to the most experienced practitioners, who have nuanced and empathetic reflections on the law.
The legal profession is particularly well-positioned to address ageism head-on. While we cannot stop the steady accumulation of age, we can work to end the steady drumbeat of ageism. A collective sensitivity to our clients’ and our colleagues’ concerns and experiences allows us to recognize when and whether the law tends to support their quality of life, or support further progress in clients’ achievement of their objectives. Recognizing when the law or our approach to it fails to support older adults gives us an opportunity to speak out, participating in the cultural shift that frames aging as momentum forward.
Notes
1 Ageism not only impacts older attorneys. Within the practice of law, age-based presumptions related to the capability of younger attorneys can impact career opportunities, professional growth, and the health and diversity of our profession. This, however, is beyond the scope of the current article.
2 Eric Lindland et al., Gauging Aging: Mapping the Gaps Between Expert and Public Understanding of Aging in America, Frameworks Institute, 2015.
3 Linda S. Whitton, “Re-examining Elder Law Practices: Reflections on Ageism,” Prob. & Prop., Jan/Feb 1998.
4 Minn. Stat. § 524.5-310(a)(1).
5 Minn. Stat. § 524.5-310(a)(2).
6 https://www.americanbar.org/groups/law_aging/ (accessed March 8, 2020).
7 Bench & Bar of Minnesota, November 2018.
8 Court Review: The Journal of the American Judges Association, Vol. 53:2, 2017.
9 https://www.health.state.mn.us/facilities/regulation/homecare/providers/maltreatment.html (accessed March 8, 2020).
10 Under the Radar: New York State Elder Abuse Prevalence Study Final Report. 2011. https://ocfs.ny.gov/main/reports/Under%20the%20Radar%2005%2012%2011%20final%20report.pdf. (accessed February 25, 2020).
11 Elder Abuse, Stanford Medicine. http://elderabuse.stanford.edu/screening/pt_barriers.html. (accessed February 25, 2020).