In addition to the need for legal services, the elder law and special needs law attorney often is confronted with a client experiencing non-legal issues requiring medical care, long-term care services and supports, public benefits, insurance coverage, protection from exploitation and neglect, and end-of-life care planning.
The attorney embracing the holistic approach (See Standard A. Holistic Approach) is encouraged, but not required, to provide assistance through non-legal services if the attorney has the experience and expertise to do so. Alternatively, the attorney may use nonattorneys to provide such non-legal services (also known as ancillary services).
Common examples of professionals who provide non-legal services in elder law and special needs law include a professional care manager, nurse, life care planner, social worker, physician, psychologist, tax preparer, appraiser, or investment advisor.
The attorney who provides non-legal services must ensure that the client's rights derived from the client-attorney relationship, such as confidentiality, loyalty, communication, competent representation, diligence and avoidance of conflicts of interests, are maintained. When implementing non-legal services, the attorney should develop procedures with the selected non-attorneys that preserve the client's rights. Such procedures may include training non-attorneys on the attorney's duties to the client and having the non-attorney agree in writing to maintain client confidences and disclose any potential conflicts of interest. The attorney also should ensure that any non-legal services are specifically tailored to the client’s individual needs.
Before involving a non-attorney in a client representation, the attorney should fully disclose to the client why the proposed service is recommended, the additional cost, if any, and how the attorney will ensure that the client's rights will be preserved. The attorney also should obtain the client's written informed consent to the non-legal services and should be advised if the non-legal service provider has any licensing or other obligations which could conflict with the attorney’s duties. For example, a nurse could be a mandatory reporter of abuse, and exercise of this obligation could conflict with the attorney’s duty of confidentiality in some states.