The Technological Impact of the COVID-19 Pandemic on Elder Law Practices

The Bencher | September/October 2022

By Jessica Melusky, Esquire*

The COVID-19 pandemic, with its widespread shutdowns and subsequent reopenings, has had a lasting impact on elder law. As a result of distancing directives, attorneys and their clients adopted new methods for client interaction and legal research. In considering the impact of the pandemic on elder law, it is impossible to ignore the role of technology. Here are a few of the ways technology has affected elder law practices:

Remote client meetings and hearings: Elder law attorneys used assistive technologies such as video conferencing apps throughout the pandemic. Videoconferencing for client meetings and court hearings offered both benefits and drawbacks.

Video appearances permitted greater participation by people with disabilities and those with less mobility. However, elder law attorneys are also required to assess capacity and identify potential signs of abuse. Because the human interaction in virtual meetings can be compromised by poor bandwidth or unfamiliarity with how to use video conferencing applications, such meetings can pose additional hurdles in determining whether there are signs of diminished capacity.

Therefore, in considering the continued use of assistive technologies, attorneys should balance considerations of flexibility in structure with the importance of due process for each individual.

“Connected independence” devices: Loved ones of family members who are living independently likely want to know that their elder relatives are being compliant with medication and are safe. Devices created to help seniors maintain independence became more prevalent during the pandemic. They include automatic medication dispensers, medication alarms, wireless motion-tracking monitoring systems, fall alerts, and voice-assistive technology.

The increased reach of these connected independence devices during the pandemic allowed the elderly to stay autonomous while still connected and safe. Elder law attorneys might consider discussing this type of technology when loved ones raise autonomy concerns about a senior client even after the pandemic.

Elder exploitation: While not directly affecting the practice of elder law, COVID-19 and social distancing increased seniors’ isolation. With seniors relying on the internet to stay connected with loved ones, online fraud and financial exploitation increased. The top three fraud subcategories were romance scams, government imposters, and business imposters.

While online scamming of older adults occurred pre-pandemic, a spike at the beginning of 2020 drew legislative attention. Policy advocates are collecting and developing educational materials for retailers, financial institutions, and wire transfer companies to stop scams on seniors.

Virtual estate planning: With increased health risks facing society, the COVID-19 pandemic dramatically increased the number of individuals who sought to make and execute a will. However, stay-at-home orders created challenges for those who needed to create an estate plan. Before the pandemic, most states required estate planning documents to be signed and notarized in- person in front of witnesses. However, in-person meetings posed a safety risk, especially for seniors. As a result, many states authorized the temporary or permanent use of virtual execution, permitting a notary and witnesses to witness the signing of a document live online.

Like virtual meetings, the virtual execution of estate documents came with pros and cons. It permitted attorneys to meet client demands while complying with public health recommendations. It was also easier for senior clients to interact with their attorneys at a high-risk time. However, because the interaction was not in-person, determining if the client signing the documents was under duress, undue influence, or otherwise incapacitated was not as apparent as with in person meetings. Therefore, as states consider maintaining or adopting virtual execution statutes, they will likely think of other ways to include protections to ensure that the individuals virtually signing estate documents are not vulnerable.

These are just four ways technology touched the practice of elder law as a result of the changes brought on by the COVID-19 pandemic. New problems were created. Old problems remained. Technology provided excellent solutions to both, but not without new unique considerations. The world and the elder law practice have likely changed for good. As attorneys adapt to this new paradigm, they will need to be mindful of technology and its costs and benefits.

*Jessica Melusky, Esquire, is a guest columnist for Chief Judge Michael K. Newell and Ryan P. Newell, Esquire, who will return to the column for the March/April 2023 issue.

Jessica Melusky, Esquire, is currently the law clerk to Chief Judge Michael K. Newell of the Family Court for the State of Delaware. She graduated from Drexel University Thomas R. Kline School of Law in 2021 and is a member of the Richard K. Herrmann Technology American Inn of Court and the Melson-Arsht American Inn of Court in Wilmington, Delaware.

© 2022 Jessica Melusky, Esquire. This article was originally published in the September/October 2022 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.