“Sorry, Kids, We Can’t Talk to You!”

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?” Yes, 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:

1. It is best if your parent(s) contact us directly to make the appointment. 
2. You may bring your parent(s) to our office for the scheduled meeting.  
3. When you arrive, we will ask you to remain in the waiting room so we can meet alone with your parent(s) first.
4. Once we have received their informed consent, we will then bring you into the meeting.
5. 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.
6. 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 upcoming 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.

“Can’t I Just Get My Parents’ Permission to 
Access Their File Later When the Time Comes?”

Some parents may grant us permission to communicate and share our file information with their children and ask us to place their consent in our file right now, for the future.  Preferably, such consent should 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 later 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).  As a client, you may go ahead and send us your consent now.  Just know that we may need and ask again for your consent in the future.

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.”