The Balancing Act – Staying Upright When Dealing With Diminished Capacity

Thursday, March 28, 2019, 1:00-2:30pm EDT


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Roundtable Moderator: Vanessa L. Kanaga, Esq., President and Director of Content Development, InterActive Legal

Roundtable Panelists: Elizabeth Q. Boehmcke, Esq., Tina R. Green, Esq., Scott M. Solkoff, Esq., and Todd Whatley, Esq.

As lawyers, our primary obligation is to serve the best interests of the client. One way estate planners do this is by putting a plan in place to protect both the client and the client’s assets in the event of incapacity.  In the ideal situation, that planning takes place well before any questions regarding the client’s capacity arise.  Unfortunately, for many, the first signs of diminished capacity are also the first trigger for contemplating this type of planning.

Once capacity has begun to diminish, it is often the client’s family that contacts and arranges the visit to the lawyer, who is faced with the difficult task of determining whether the client has sufficient capacity to put the necessary planning documents in place.  Often, the lawyer feels pushed in different directions by both ethical obligations and requests made by the client and family.  On one side is the duty to serve the client by putting the appropriate plan in place; on the other side is the duty to protect the client against undue influence.  Similar challenges may arise for lawyers dealing with a guardian or attorney-in-fact acting on behalf of a client who lacks capacity.

In this live video RoundTable, our panel will address the difficult issues that occur when representing a client with diminished capacity.  We’ll discuss the ethical obligations that the lawyer must consider, and offer practical advice for balancing the conflicting interests in a manner that meets those obligations.  Questions addressed will include:

•    How can I be sure a client has sufficient capacity to retain my services individually?

•    How do I work with an attorney-in-fact or guardian, while making it clear that my obligation is to my client, and not the fiduciary acting on behalf of my client?

•    How should I define the attorney/client relationship for all parties involved?  What do I need to put in writing, and when?

•    What type of fee arrangements are permissible when representing an incapacitated client?  Should I accept payment from a family member or other third party?

•    What conflicts of interest may arise when representing multiple family members?  How do I know when (if ever) it is permissible to do so?

Do you have the knowledge you need to stay upright when dealing with the turbulent winds of incapacity?  Join our panel of experts as they discuss these important issues, and more.

Our Roundtable Moderator

Vanessa L. Kanaga, Esq., President and Director of Content Development, InterActive Legal ^

Vanessa Kanaga joined InterActive Legal in 2013, and serves as President and Director of Content Development. In her role, Vanessa oversees the development of InterActive Legal program content, in addition to working with CEO, Michael L. Graham, to guide the company in its future direction, and manage day-to-day operations. Vanessa received her J.D. from Cornell Law School, Magna Cum Laude, in 2006, and holds a B.A. in Philosophy from Wichita State University, with a minor in Music, as well as an Advanced Professional Certificate from New York University School of Law. Following law school, Vanessa practiced in New York for several years, at Milbank, Tweed, Hadley & McCloy, LLP, and then Moses & Singer, LLP. In 2012, she returned to her home town of Wichita, Kansas, where she was an associate attorney in the estate planning and probate practice group at Hinkle Law Firm, LLC, before joining InterActive Legal.

Meet the Panelists

Elizabeth Q. Boehmcke, Esq., InterActive Legal ^

Elizabeth (“Beth”) Boehmcke graduated cum laude from the University of Michigan Law School and practiced for several years in New York, specializing in high net worth estate planning, with an emphasis on cross-border and asset protection planning, and the representation of fiduciaries managing complex trusts and family businesses.  After a hiatus to care for her children, she resumed her legal career by passing the Virginia bar in 2014 and working for the Hook Law Center, P.C., where she expanded her estate planning practice to include elder law, specifically focusing on asset protection planning for Medicaid and Veteran’s benefits.

Tina R. Green, Esq., Capshaw, Green, LLC  ^

Tina Green of Capshaw, Green, LLC in Texarkana, Texas is Board Certified in Estate Planning and Probate Law and Tax Law by the Texas Board of Legal Specialization.  She is a Certified Elder Law Attorney by the National Elder Law Foundation, as well as a Fellow of the American College of Trust and Estate Counsel.  Tina is a frequent speaker at continuing legal education programs, and she has authored a number of articles related to estate planning, probate, and estate taxes.

Scott M. Solkoff, Esq., Solkoff Legal, P.A. ^

Scott Solkoff is the founder of Solkoff Legal, a law firm based in Delray Beach, Florida that exclusively represents the elderly, those with special needs and their caregivers.  He is also the co-founder and lead instructor of Elder Law College, a comprehensive platform of knowledge and support assisting attorneys in becoming successful in all matters of Elder and Special Needs law.  He is a Florida Bar Board Certified Specialist in Elder Law, a Fellow of the American College of Trust and Estate Counsel (ACTEC), and is an author and frequent speaker on elder law issues across the United States and Canada.

Todd Whatley, Esq., ^

Todd Whatley is an attorney and co-founder of WealthMerge, an attorney and advisor network focused on Medicaid and VA asset protection and long term care planning. Todd is a licensed insurance agent and Certified Elder Law Attorney with 20 years of experience. He is Past President of the National Elder Law Foundation, the ABA approved organization to certify attorneys nationally as Certified Elder Law Attorneys. Todd is Of Counsel with a number of law firms across the country and is a national speaker and educator on Elder Law issues.

CLE Credits

InterActive Legal is not an approved Continuing Education Sponsor. However, several states and regulatory agencies for a variety of professionals that participate on our teleconferences may still receive continuing education credit for their participation. If a participant wishes to receive CE credit for their participation in these teleconferences, they must apply to receive credit on their own and through their individual states and regulatory authorities. It is the responsibility of the participant to file for CE credit and is not guaranteed by InterActive Legal.

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