Getting Resistant Elder Law Clients To Say Yes

When an older adult insists they’re “fine” while the stove keeps getting left on, meds are missed, and falls are piling up, families often want one thing from their lawyer: make this happen. I share how I handle that moment, step by step, without jumping straight to guardianship and stripping someone’s rights just because it feels faster.

We start with the core scenarios elder law attorneys see constantly: a needed move to assisted living or a nursing home, and the refusal to sign a power of attorney even when unpaid bills and declining capacity are obvious. I explain exactly how I open the conversation if the person is already my client versus someone I’ve never met, then how I surface the facts in plain language without getting trapped in arguments and excuses. From there, I lay out a progression that escalates appropriately, including the very real possibility of Adult Protective Services involvement when safety issues are documented by family, doctors, or law enforcement.

Finally, we talk about the hard line, the point where your tone has to change and the client needs a clear choice between going willingly or having a judge impose an outcome that is more expensive, more public, and far less in their control. The goal is not to bully anyone. The goal is to protect vulnerable people, keep families out of trouble, and use the least restrictive solution whenever possible.

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Transcript

Welcome And What We Do

SPEAKER_00 0:02

Welcome to the Elder Law Coach Podcast, where attorneys learn to confidently handle elder law Medicaid planning, special needs planning, and estate planning matters. Your host is Todd Wantley, certified Elder Love Attorney, former president of the National Elder Law Foundation, and founder of the Elder Law Coach. Join on more than two decades of experience, Todd shares practical insights to help you grow your practice, serve more families, and become the trusted elder law authority in your community. And now here's Todd.

SPEAKER_01 0:32

Hi there, my name's Todd Watley, Surf Ader Law Attorney, and I am the Elder Law Coach. Thank you so much for joining me today. Today we're going to do a topic that, again, I do things a little differently than most people just because I've never worked in a big firm. I've done things the way I think they need to be done in over 27 years. Trust me, I've changed a lot of the way I do things, but I think I do things in clients' best interest. And sometimes that's very different than what is

The Hard Ask Clients Refuse

SPEAKER_01 1:00

typically done. Okay. Today the topic is how to get a client to do what they really don't want to do, but it's in their best interest to do. Okay. Big caveat there is, you know, we can't be attorneys and just throw our power around and make people do things. This is for the situation, two things primarily. Number one, the person needs to go into a food facility. They've been at home and there's been some incidents. They've left the burner on, they're not taking their medicine, they keep falling, they're not bathing. You know, there's just a lot of things going on at home that they need to go into care. Okay. And we can also use this same argument when someone needs to sign a power of attorney. So this is my progression of the discussion that I've have with people in this situation. Okay. We get caught all the time as elder law attorneys. It's like, Todd, mom needs to go to the nursing home and she just won't go, or assisted living. She

Why Guardianship Should Be Last

SPEAKER_01 2:10

needs to get out of the home and she just won't leave. What do we do? Okay. What do most attorneys do? Okay. I will tell you what most attorneys end up doing is they file a guardianship. It's just easy. You just file a guardianship, take all these issues that have occurred at home, the fact that the person's probably been diagnosed with dementia. We can go to a judge, they can do a guardianship, and now we can make her go. Easy, right? Well, it may be easy, but it's not in the client's best interest. Okay. We work for the older person. We want to protect older people and preserve their rights and help them in their life, their final years, to be as good as possible. And filing a guardianship when there's other options is not in their best interest. Okay, so if you make your your living doing guardianships, you're not going to love this show. I'll just tell you. So what do we do? Miss Jones is at home and the family calls you to say, hey, she needs to go. Now, is Miss Jones your client or not? That matters

Opening The Conversation With Respect

SPEAKER_01 3:15

a little, but honestly not much. If she is my client, I can open up with the conversation to say, hey, Miss Jones, it's Todd Watley, your attorney. We did powers of attorney back a few years ago. Yeah, yeah, Todd, how are you doing? I'm fine. And you can start that conversation in a in a friendly way and say, look, I'm your attorney. I'm still looking out for your best interest. And here's what we need to talk about. Versus, she's not your client. This is the first time you've met her. The family came to see you to say, hey, Todd, my mom needs to go to the nurse home. She won't go. We don't have power of attorney, whatever. And so you you walk in and say, Hey, Miss Jones, my name's Todd Watley. I'm an attorney. And your family called saying that there's some things going on. And I work just with older people, and I'm here to talk about how things are going and see if we can help this go better. And they're like, oh, okay. So what's going on? Okay. So that's how you open that conversation either with your client or a brand new person. So once that's done, you say, So how are things going? You I see you're living here by yourself or you've not signed powers of attorney before. Tell me how that's going. And typically they'll say, Oh, we're fine. Okay. Everything's good. And it's like, well, I've heard that you left the burner on and the fire department came to see you a few weeks ago. Well, yeah, that was just a huge misunderstanding. No, I don't think. No, leaving the burners on is not a misunderstanding. Or, you know, you've been falling some. Well, yeah, I've I've slid to the floor a few times. Okay. How are your medications going? I understand your doctor was on your case a little bit about not taking your medicines. Well, blah, blah. Okay. Whatever their answer is doesn't matter because you've you've brought up these issues. Or when we're trying to sign a power of attorney, it's like, well, I understand there's some bills not being paid. I understand you probably don't get out as well as you used to. And this power of attorney will allow your son, daughter, whoever, to be able to do things for you. Why don't you you sign this letting them do it? And they're like, nope, don't want to sign it. I'm fine. I don't need it. Okay. Same thing about going somewhere. No, I don't need to go around. I'm I'm doing fine here. Well, you're actually not. And there's some problems. And so sometimes when you bring up these issues, it may convince them. Honestly, it probably won't, but it's at least the starting position to say, hey, Miss Jones, there's some problems. And we recognize these problems and we need to address this. And they're like, no, I'm fine. I don't need to sign this

Escalation Using Real World Stakes

SPEAKER_01 6:00

power of attorney. Okay, fine. Then you go to the next level. Well, Miss Jones, I understand you want to stay here, but with things that have happened, you left the burner on, you're you're not taking your medicines, you keep falling. You understand our government is here to generally help us, okay? But they're also looking out for people who may be vulnerable and need help. And I always bring this back to kids. I I was like, Miss Jones, you understand that if a child is not being nourished, if they're being abused, if they're being neglected, if they're in a bad household, you understand the government can go in and grab those kids and put them somewhere because they are vulnerable and they need help, and the state, the government, takes that very seriously, and they want to do that. And we want to take care of children that are not in a good situation, correct? Yeah, yeah, that makes total sense. I say, okay, Miss Jones. Our government also does that at the later end of life. Someone like you who may not be doing well, you know, you've almost burned the house down, you're not taking your meds, you keep falling, you know, things are going on. I had a client that I just did this for, and one of the roads here in in northwest Arkansas, it's a highway that goes into kind of a neighborhood road, but then it that road ends at a boat ramp that goes into the lake. And this lady got lost, and I think it was night, and she drove her car. I think she got a little ways into the water before she stopped. She didn't get all the way in. They were able to back the car out, but she was this close to driving her car into a lake. Okay. And so I I brought this up to her, and she's like, Well, that was just a misunderstanding. No, ma'am, your car was touching water and almost, well, the water rose to me. I was just parked there looking at the lake in the water. I said, Okay. So, you know, you will get all kinds of excuses. It's fine. I say, but you know, just like we as the government are concerned about kids not being cared for, you know, being abused, we also care about older people. And based on what your family's told me and the medical records that I've looked at from your doctor, they could get very involved in your situation. And I'm just telling you, as an attorney, this is a situation where if we don't do something here, the government could become very involved and take you and put you somewhere. You don't want that, do you? No, I don't want that. Okay. Well, I need you to pack your bags and go to this place that they're that they've got for you. Nope, I'm not going. Or I really need you to sign this power of attorney so we can take care of things, so we can show the state what happened and keep the government out of this. And with the lady who almost drove her car into the lake, I used that threat, not fully knowing. I mean, to my knowledge, the state had not become involved, but I've done this enough times that I know the state could, and I used that threat. Well, lo and behold, her doctor, when the police picked her up and took her temporarily to jail just to protect her, and called some people, they told her, You have to go to the doctor. The doctor heard this, he called Adult Protective Services. So the week after I met with her and got her to sign documents, no, it was between. We talked about she finally agreed, yes, I will sign what you bring me. Then the week between that time and when I came back to sign documents, the government did get involved. Adult Protective Services did come out and speak with her, and we said, and they said, an attorney was here yesterday, Todd Watley was here, he's doing documents, we will have documents this Thursday, and everything's taken care of. They're like, okay, great. So they backed off. And so that is a threat that is a possibility, and so using that thread is is not unjustified, okay? Sometimes that works. With this lady, she agreed to sign the power of attorney. And so many times the person picking up and moving from home going to assisted living, that's not a strong enough argument. Okay. So in in these situations, using that thread is not a veil thread. Okay. Um, many times that'll work with POA. We're still at the person refusing to go to the nursing home.

The Final Ultimatum And Options

SPEAKER_01 10:40

You have to ramp up one more time, okay? And this last ramp up, and that previous one, you're still a little friendly, you're still trying to, you know, be nice and coerce them nicely to do this. This next step is a little more firm, your tone becomes a little more serious, and you say, Miss Jones, I understand you don't want to go to assisted living, you don't want to leave home, but I am telling you, based on what I've seen, this is going to be a problem. And if you stay here, if we let you stay here, and the state becomes involved in this situation, there's is a possibility they could blame your kids for not intervening and not taking care of you. They are naturally your caregivers and people who should be looking after you. And I don't know that this will happen, but the state could start placing blame on people who really are trying to help you, but you're just not letting them. You need to go live in assisted living so that they don't get in trouble, or you need to sign this power of attorney so they can do the things to protect you so they don't get in trouble. You kind of you you you take it one step further to say this it can be an issue to your children. Okay. And sometimes that works. Okay. It's like fine, okay, I'll sign, fine, I'll go. But if if that step doesn't work, your final step becomes very direct, your tone is very authoritative, and you're not asking anymore, you're saying this is what's going to happen. And you basically say, Miss Jones, based on what I've seen, based on what I've read, knowing this situation, having done this for X number of years, I am telling you you're going to assisted living. No, I'm not. Yes, you are. You are going, because if you don't pack a bag and go willingly, I have uh enough evidence that I can put on a suit and go see a judge either this afternoon or first thing in the morning, present them with some paperwork, and they will sign it saying that you no longer have any rights, and we can physically put you on a stretcher against your will and take you to someplace and let that sit with them. They look at you like, wait, what? I'm telling you, you're going. It just is a matter of how you want to go. Do you want to go willingly? Do you want to pack a bag and let's get in the car with your kids and let them take you there? They're sitting there waiting on you. Your room is set up, it's ready to go, and we can just go willingly. Maybe first thing in the morning. If you want one more night here, but I'm telling you, you're going. And if you don't willingly pack a bag, you're gonna make me charge you and your family a few thousand dollars. I put on a suit, I'm gonna go tell a judge all these things that you're doing, and it's gonna be in most states, public record. And a judge, I think, will be convinced that you have to go and will sign an order requiring us to physically take you against your will there. How do you want to go? Do you want to do it nicely or do you want to go unwillingly in an ambulance? That works in almost every situation. Okay. That unless they are just at the very end stages of dementia and they can't process anything that that makes sense, that works. When they're when they are told you're going to go one way or the other, I think it's in their best interest to be told that and to be given the option of, okay, well, uh I I don't okay, I'll go. All right. And they pack a bag and they get it in the car and they go. Okay. So you may be thinking, well, Todd, you go to a lot of effort to not do the guardianship. Yeah, I think it's in the client's best interest. And yeah, that doesn't pay as well. Okay. Me doing that is generally a consult fee and maybe a travel fee, okay? Which is nowhere near what it what a guardianship is. But again, we are to be looking after the client's best interest, to do what's in the client's best interest. And even if this is not your client, it's still an older person in need of protection. And if we can do that without

Key Takeaways And How To Reach Me

SPEAKER_01 15:20

involving the court, I think that is hugely important. Okay. And so that's how I do this, and I would encourage you to give it some thought and adopt these processes in your practice. Okay. Would appreciate feedback. If you have comments, if you have questions, you can always email me, Todd at the elderlawcoach.com. Also include Trisha. She is my assistant, and I get a ton of emails. I will do my best to answer, but if I don't, she'll see it and she will make sure that I get you an answer, a comment, schedule a phone call or something. Okay. I would love to be your coach if this interests you, along with Medicaid and estate planning for odor people, and to do absolutely what's the best job in the world. I would love to work with you as a coach and help you work through these situations looking after the client's best interest. Okay? Thank you so much for joining me, and I will see you next time. Thanks.

SPEAKER_00 16:22

Thanks for joining us on the Elder Law Coach Podcast. For more resources, training, and coaching, visit theelderlawcoach.com. I'm Todd Watley, and I'll see you next time as we continue helping attorneys build successful elder law practices and better serve the families who depend on them.