Protecting the Rights of the Vulnerable: Elder Law Clinic

The Elder Law Clinic helps protect the rights of vulnerable people who may not be able to make decisions for themselves.

“A major part of our docket is adult guardianship cases,” said Professor Joe Rosenberg. “These cases involve people who are alleged to need a guardian to take care of personal needs or their property management.”

Professor Joe Rosenberg

Professor Joe Rosenberg

Clients don’t have to be old, even though “elder” is in the clinic’s name. It really has more to do with the issues.

“We’ve worked on cases involving a 21-year-old person with mental illness and middle-aged people with developmental disabilities,” Rosenberg said. “There’s also older people with a mix of limitations related to aging.”

Those limitations may involve conditions such as dementia, but some individuals, even those who are alleged to need a guardian and might have some degree of diminished capacity, are often still able to make their own decisions.

“As they age, more people have physical issues but remain totally sharp. People make broad generalizations about aging and dementia, thinking they go together; they actually don’t,” said Degna Levister, who co-teaches the clinic with Rosenberg.

Clinical Law Professor Degna Levister

Clinical Law Professor Degna Levister

She likes to debunk some of the stereotypes about aging in the clinic, pointing to jazz greats like Sonny Rollins, who still does concerts at the age of 82. Or bassist Ron Carter, 76, whom Levister recently heard play and speak at the Brooklyn Conservatory of Music. “Sharp as a tack,” she said. Levister and Rosenberg connect the performance of these musicians to the practice of law “in the indeterminate zone,” where students learn how to work with the uncertainties of legal practice and to develop a range of approaches to solve the legal and nonlegal problems of clients.

But even mentally sharp people should protect themselves from the effects of aging by planning ahead.

“Everybody over 40 should have a power of attorney and health-care proxy,” said Levister, quoting a colleague, “because you just never know.”

What complicates things is when older people are of sound mind but put off planning for the future. It can be challenging to get them to think about their own mortality and the idea of losing some autonomy by allowing someone to help them make decisions involving property and personal needs.

The clinic also represents people seeking to be appointed guardian for a friend or relative. Or the clinic itself may be appointed as a court evaluator, the so-called “eyes and ears of the court,” said Rosenberg. In that capacity, the clinic must file a report and testify in court, making recommendations on whether a guardian should be appointed—or not. That’s because guardians have the power to take advantage of the very clients they were appointed to protect.

“When a guardian is appointed, it limits somebody’s constitutionally protected liberty interests,” he said. “Guardians make decisions about fundamental aspects of life.”

Perhaps it’s only fitting that the director of the Elder Law Clinic has had tremendous longevity at CUNY Law School. Rosenberg, the associate dean of clinical programs, first taught as an adjunct in 1988, starting up a wills clinic with David Kadane that would become what’s now known as the Elder Law Clinic. Rosenberg also graduated from CUNY Law in its inaugural 1986 class.

After law school, Rosenberg worked at the Legal Aid Society in Albany, New York. One thing that piqued his interest: Older clients who needed Medicaid to pay for home care or nursing home care were losing their homes because of Medicaid’s liens and estate recovery rules.

“That was a big part of what got me into [elder law],” recalled Rosenberg. “There was a lot of client contact, a mix of preventive law and litigation.”

In the Elder Law Clinic, students get to put their lawyering skills to work by interviewing and counseling, as well as writing reports, pleadings, and motions to file with the court. They interact with other lawyers and court personnel, as well as social workers, doctors, nurses, and case managers. Students also appear in court to make opening statements, do direct and cross-exams, testify, and take part in conferences with judges.

“There’s nothing like taking the skills and substantive knowledge you learned in your doctrinal courses and applying them to real people,” said Levister.

Students also get to clearly see the difference they’re making. To date, the clinic has helped numerous people stay at home or return to their communities from institutional living.

Some of the clinic’s cases involve planning, so students may need to draft wills, health-care proxies, or powers of attorney. Last semester, Rosenberg said, students worked with the Lenox Hill Neighborhood House, a social services organization that runs programs for older adults.

Besides working on cases, students also work on projects. Earlier this year, two students worked at the Vera Institute of Justice’s Guardianship Project, run by Laura Negron (’07), one of Rosenberg’s former students.

Numerous calls from people wanting to be guardians for others gave rise to the Elder Law Clinic’s Article 81 Guardianship Pro Se Project. Through materials developed by students and posted to the clinic’s website, people now have access to a step-by-step guide on how to file papers to become a court-appointed guardian.

That access continues to grow, helped by the Center for Computer-Assisted Legal Instruction (CALI), which accepted Rosenberg’s recent proposal as part of its Access to Justice clinical project.

“It’s exciting to me that a person will be able to answer a series of questions and prompts, and the CALI program will produce pleadings that can be filed with the court,” he said. The upshot: Technology can help aging people and their families in need navigate the court system, without having to go through private attorneys and incurring prohibitively expensive legal fees.

– Paul Lin

More from CUNY Law magazine Spring 2013 »