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Representation in the Nursing Home

In response to the perceived threat that over zealous attorneys posed to the elderly, the New York Coalition for Quality Assisted Living drafted rules that govern the 33 facilities they govern. In these rules, the nursing home residents would be accompanied by a nursing home representative when visited by an attorney and it would prohibit attorneys from visiting a nursing home without going to visit a specific resident. The rules released in 2007 saw substantial push back from the legal community and on October 21, 2011 the NY Court of Appeals struck down the regulations as a bar to legal representation.

Those in nursing homes are certainly one of the more at risk communities with enough bars to appropriate legal representation without more regulation stopping attorneys from defending a client's rights. Whether it is drafting a will, filing a claim or consulting with an attorney on tax questions, all nursing home residents can now be assured that their conversations with their attorney are as private and privileged as ever. The New York Coalition for Quality Assisted Living's regulations certainly came from a good motivation to protect their residents from unscrupulous legal representation, but if the regulations have a chilling effect on lawyer-client relationships then they have gone too far.

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- Valerie M. De Peppo-Malloy, Esq.

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