Supporting older New Yorkers in need through senior law representations

Many older Americans (aged 65+) do not have end-of-life or incapacity plans in place because they lack access to legal services, often due to financial limitations, isolation, health conditions and/or challenges using technology. Supporting older New Yorkers has been an ongoing focus of Davis Polk’s pro bono practice for decades and a part of many lawyers’ experiences at the firm. In the past 18 months, we have provided long-term representation to 29 older New Yorkers in need at the recommendation of Volunteers of Legal Service and community organizations. We have also advised countless more through clinics at Brooklyn’s Marcus Garvey Community Center, which houses recently incarcerated men over 50, and the Upper West Side’s Service Program for Older People, which provides mental health support to older New Yorkers. 

Lawyers advise clients on end-of-life planning, which, with regard to preparation of a will, includes discussing critical topics such as distribution of belongings, handling of remains, and who can be responsible for making sure their last wishes are observed. The other area of focus is planning for a time when clients may be incapacitated and can’t make decisions for themselves, which involves preparation of living wills as well as the designation of healthcare proxy and power of attorney rights. These documents are especially important for seniors of limited means because they allow the maintenance of benefits such as Medicaid and ensure clients’ ability to choose their own caregivers and remain in their homes. This planning also involves discussions around a client’s wishes for how medical emergencies should be handled, including if they wish to be resuscitated or receive pain relief, as well as who is responsible for personal administrative tasks like banking on their behalf, coordinating insurance, etc. 

Helping clients navigate these extremely impactful decisions requires that lawyers utilize softer skills they don’t normally exercise in their work – in addition to handling the legalities of this planning, they also must understand any sensitivities at play and make clients feel cared for. Our lawyers handling long-term representations often visit clients’ homes and arrange for document finalization meetings to be held there. In addition to being logistically easier for clients, especially those in poor health, these visits allow lawyers to learn more about their clients’ lives, see family photos and form personal bonds. All participating lawyers are extensively trained on topics relating to senior law, which includes the important responsibility of ensuring that clients are of sound mind and that their decision-making ability isn’t compromised. Unfortunately, it is not uncommon for older clients to be vulnerable to coercion by family members or others in their lives; lawyers who take on older clients in need are responsible for ensuring that legal documents and designation of power of attorney or healthcare proxy rights are in their client’s best interest and are reflective of their true wishes. 

While both corporate and litigation lawyers work on senior law matters, corporate lawyers often especially enjoy the opportunity to work with individual clients; there are also similarities in the kinds of document preparation that corporate lawyers do in their day-to-day work. Finance partner Scott Herrig has worked with one client, a well-known former ballerina who lives in subsidized artist housing, since he was a junior associate; Real Estate associate Shua Mermelstein formed a close relationship with one client he represented on a long-term basis; and in an effort to help his client execute plans for handling of their remains, Tax associate Isaiah Kramer did extensive research about the legalities of scattering ashes in New York City’s green spaces. 

Pro Bono Attorney for Corporate & Transactional Matters Jenny Dai reflected: “These clients are all compelling in some way – you learn about their lives through conversations about who is meaningful to them and what they want their legacy to be. It often puts things in perspective to hear that clients’ wishes are sometimes as small as asking someone to keep their favorite plant alive after they pass. You really get to know people and develop an incredibly unique bond.”