If your parent (or parents) created an estate plan with us, or spoke with us about getting one, you’re likely to run into an unanticipated roadblock someday when you contact us.
You may give us a call or send us an e-mail, asking to speak with your parent’s attorney. Maybe you’ll want to assist your parent with the process of establishing or changing his or her estate plan. Maybe you’ll want some information from our file, to assist your parent in some way, like with handling his or her financial matters. These are perfectly legitimate reasons why you may contact us.
Unfortunately, the answer you’ll likely receive from us will be, “Sorry, we can’t talk with you!” (Our answer may not be quite that brief or blunt, but that’s what you’re likely to hear.) And, if you insist on continuing to contact us, we may simply refuse to return your calls or e-mails. No doubt, your reaction will run the gamut from disappointment to shock, frustration, and even anger. Your reaction will seem warranted, since our behavior will have appeared to you as cold, unempathetic and unprofessional. In fact, however, we will be observing the highest professional standards - - and, believe it or not, may be acting for your benefit! Please permit me to explain.
We Only Serve One Client
As estate planning attorneys, we are bound by certain Rules of Professional Conduct (also known as “Ethics Rules”). While it’s logical and understandable for you to believe that, as a child of our client, you may have an interest in your parent’s estate plan and should therefore be able to be involved, these Ethics Rules may limit your involvement.
First, your parent, who engaged us and for whom an estate plan was created, is our only client. (If a parent becomes ill, disabled or deceased, then we may represent the person who then legally steps into the shoes of your parent, namely his or her agent under Power of Attorney, Executor of his or her Will and Successor Trustee of his or her Living Trust.) We owe to our client, your parent (or their legal representative), a number of inviolable professional duties.
The Duty of Confidentiality
Our applicable Ethics Rules require us to maintain as confidential all communications between our client and us, as well as all their asset and other information contained in our files, even including the client’s estate plan documents. We are not permitted to reveal or discuss these confidential matters with any other party without the informed consent of our client, your parent (or a court order).
The client’s informed consent cannot simply come to us in the form of a letter or e-mail, or even a phone call or Zoom meeting. We are obligated to first assess the client’s legal capacity to grant informed consent. Typically, that requires a private, in-person meeting with your parent(s), at our office, where we can both verify there are no other possible distractions or influences present and fully evaluate the client’s physical and mental state.
If and when we meet with your parent, to determine his or her legal ability to grant informed consent to the release of his or her confidential information, you should not attend that meeting. We’ll come back to this issue later and explain the reason why. But, first, let’s go over the other professional duties we owe to our client, your parent.
Duty to Protect the Interests and Independence of the Client
In particular, we are bound to avoid any potential negative or unlawful interference with our client’s (your parent’s) personal affairs, especially possible forms of physical or financial elder abuse. We also are duty bound to avoid any potential negative or unlawful interference by others with the terms of your parent(s)’ estate plan, through what is commonly referred to as coercion or undue influence. Our role is to help assure your parent(s)’ intentions, as expressed to us and set forth in their estate plan, are properly carried out.
Again, the most appropriate way for us to best safeguard the interests and independence of the client is to meet with him or her personally, alone in our office.
Now that you know these legal duties we owe to your parent(s), you may still have this burning question…
How Does “Freezing You Out" of the Estate Plan Process
and Information Benefit You, Our Client’s Child?
Over the past 40 plus years, our law firm has handled over 4,000 estate plans after an individual has become disabled or has passed away. Through this unparalleled level of experience, we’ve gained first-hand knowledge of how estate plans may be successfully overturned (or bitterly litigated or “contested” to the point no one wins). The two most common ways these occurs are when a disgruntled party argues either “lack of capacity” by the client when the plan was made or changed or “undue influence” by a third-party, in particular by a potential beneficiary who may have gained some advantage through his or her involvement.
If we communicate with you directly (other than in general terms which do not reveal any client confidentialities), or permit you to sit in on a virtual or in-person meeting, it will be difficult for us to independently assess your parent(s)’ legal capacity and later testify, if necessary, to the lack of undue influence by you while you participated.
In other words, we best protect the integrity of your parent(s)’ estate plan - - and any interest you may have under it - - by adhering to our professional Ethics Rules. It’s important that you understand that, if incapacity or undue influence are later raised by other potential beneficiaries, you could lose your share of the estate! (Or, at least, a big chunk of it to legal fees when the estate defends itself against a costly contest!)
You may be thinking, “Aren’t there any exceptions to The Rules, where you are allowed to communicate with me, or permit me access to the file information, or allow me to participate in the process?” There are…
Here’s How We Can Help You
If we meet in-person with your parent(s) at our office, and are convinced of their legal capacity, we can then ascertain if they freely and independently wish to consent to your attending a meeting with them and us, or having access to their file information.
Here’s how this should properly take place:
- It is best if your parent(s) contact us directly to make the appointment.
- You may bring your parent(s) to our office for the scheduled meeting.
- When you arrive, we will ask you to remain in the waiting room so we can meet alone with your parent(s) first.
- Once we have received their informed consent, we will then bring you into the meeting.
- Normally, before calling you in, we will discuss the terms of the estate plan (or any changes to it) with your parents. Realize that this may take a while and you may wait for some time before we bring you in. Please be patient.
- Once you join the meeting, we can discuss the terms of the plan with you and answer any questions or concerns you may have.
If, however, your parent(s) indicate to us a lack of legal capacity, we may contact the Successor Trustee (who may not be you) to have the client examined by two doctors and obtain their letters attesting to your parent’s capacity or incapacity. If incapacity is confirmed, we may assist you, if you are the Successor Trustee, to step into that legal position of authority on behalf of our client and then represent you as our new client should you wish. Sometimes, if our client does have capacity but it may be starting to slip, he or she may decide to appoint you as an immediate Co-Trustee or as sole Trustee, where again we may then represent you as our client.
Another situation where we may help you is when you may suspect foul play, such as someone attempting to take advantage of your parent(s)’ physical, mental or financial condition. In these events, the nature of our response and assistance will be determined by the facts, again keeping in mind that our primary duty will be to protect your parent(s).
But you may still have an important, unanswered concern…
“If I don’t bring in my parents and participate in the attorney meeting, my parents won’t get an estate plan in place!”
If you choose the attorney, bring in your parent(s) and sit in on the attorney meeting, you may appear in control of the estate plan rather than your parent(s), which risks the plan later being overturned. A better solution is to have your parent(s) attend one of our virtual or in-person seminars so they can, of their own volition, make an appointment with us at the conclusion of the presentation. Then we can implement the process described above to properly protect both you and them.
One Last Cautionary Note
You may believe our approach to be unnecessarily strict or merely our opinion. Frankly, it’s not unusual for other estate planners to be much more liberal about complying with the Ethics Rules. If you do still want a “third party opinion”, we highly recommend that you check out the American Bar Association brochure, “Why Am I Left in the Waiting Room?”. It is available from us only in print form, free of charge, by contacting us to request a copy.
In closing, here’s a powerful quote from that ABA brochure:
“We don’t want our client’s choices, and the documents they sign, to be undone one day in the future because we allowed family members to be too involved in the matter.
That’s probably the kind of court case you, too, would rather avoid.”Note: In a future article, we will address how we may communicate or work with you after your parent has passed away. Whether or not you are the Successor Trustee, you may then acquire certain rights as a beneficiary, and you should know how to properly exercise those rights when the time comes!
Letter from the Editor
We received numerous responses to this article. Most were understanding of our unique restrictions, as attorneys for a parent, when communicating with and sharing our file information with children of our client. These require the client’s consent. Some parents immediately asked us to place in their file right now their consent for their children to have full ability to communicate with us and access to their file information.
We may certainly enter a client’s consent into our file now. Preferably, we ask such consent to be placed in a written and signed letter to us. We may also request an in-person visit to verify the consent.
However, please understand that such a prospective consent - - given to us far in advance of a child’s future communication with us or request for file information - - may need to be reviewed by us and given again by the client at or near the time of such child’s communication or request. This is because, during the passage of time, many factors relating to an informed client consent may have changed. For example, the client’s relationship with the child may have changed, or the child’s circumstances and possible third-party influences, or the client’s wishes pertaining to the child in the estate plan (the child’s role as Successor Trustee or as a beneficiary). You may send us your consent now. Just know that we may need and ask again for your consent in the future.