• Nikki Hashemi

Estate Planning Lawyer Asked to Meet Alone with My Parent


Elderly fathers playing chess and strategizing. Elderly mental capacity and competence for estate planning
Strategize the next steps in line with the rules, and your parent's estate plan will pan out as they intended.

Scenario: Adult Child Helping Parent Out


After conversations with family members, you’ve been tasked to find a suitable estate planning lawyer for your elderly parent. Your parent is eager to get her estate documents prepared, signed and organized, and appreciates your help to get the ball rolling.


A caring attorney is recommended to you and you make the appointment for the free consultation. Together with your parent you arrive at the attorney’s office and after a brief exchange of greetings and pleasantries, you are asked to wait outside in the waiting room while your parent is escorted to the conference room with the attorney.


You may feel confused, frustrated, or possibly angry about this situation, especially since you did all the work in arranging the meeting in the first place, but hopefully the remainder of this post will help you see it differently.


What Does Ethics Have to Do With It?


The above scenario is not uncommon; neither are the adult child’s hurt feelings. But if this does happen to you and your parent – at Interplay Legal Solutions it will absolutely play out like this – I’d like to assure you that instead of feeling hurt you can feel relieved that you have chosen an ethical attorney to meet with your parent.


Estate planning law is a unique practice, because we often deal with multiple family members to achieve a common goal for one member but need to be cognizant of the ultimate end-result of our actions and inactions.


That’s where the Rules of Professional Conduct (Ethics Rules) that binds all attorneys are crucial to avoid unintended results in the future. In this example, an ethical Attorney needs to be mindful of the guidelines that are often referred to as the 4Cs: Client, Conflicts, Competence, Confidentiality.


But First, What Unintended Results Are We Talking About?


Two of the most common reasons for a disgruntled party overturning or contesting an estate plan are lack of capacity by the client (here the parent) when the plan was created and undue influence by a third party – specifically a potential beneficiary who may have gained some advantage through their involvement.


If incapacity or undue influence are later raised by other potential beneficiaries, you could lose your share of the estate – or at a minimum a big chunk of it due to legal fees to defend the estate against a costly contest.

Sitting out on the first consultation while Mom is privately talking to the attorney suddenly doesn't sound too bad, right?



So What About Those 4Cs?

Client


As an Attorney, I must identify who my client is. My client is the person whose interests are at stake and/or the person ultimately signing the documents.


The Ethics Rules limit an adult child’s involvement in their parent’s estate planning affairs if the parent is my client who has engaged my firm to help them change or create their estate plan.


Of course, if the parent were to fall ill, disabled, or deceased, then I may represent whomever legally steps into the shoes of the parent either as agent under a Power of Attorney, as Executor of a Will, or as Successor Trustee of the parent’s Trust.


Bottom line, I owe ethical and professional duties to my client or their legal representative, which in turn limits my ability to allow you, the well-meaning adult child to be immediately involved. To avoid establishing an unintended relationship with you as the adult child, I would ask you to not join us for at least a portion of the consultation.


Conflict of Interest


If the adult child were to participate in their parent’s consultation with me, then a potential conflict of interest may arise, where the interest of the parent may conflict with those of the child – whether right now or in the future. To avoid such a conflict, it is pertinent to meet with the parent who has or seeks to engage my services in private, without the adult child present.


Competence


I also have a special ethical responsibility when it comes to representing people who may have diminished capacity. By meeting with an individual alone, I have more time to determine my prospective client’s level of capacity and to get a sense of their goals and objectives of our engagement and representation.


Once again, by having the adult child present, it may affect my assessment of your parent’s competence and understanding.


Confidentiality


Ethics Rules require attorneys to maintain all communications with our clients confidential. We cannot discuss or reveal any confidential matters with anyone without the informed consent of our client or a court order.


How Can My Parent Provide Informed Consent?


It’s important to note that informed consent from a client or prospective client is not merely a verbal statement, phone call, email or zoom meeting with my office.


There are certain steps that I recommend that will give me the chance to assess my client’s legal capacity to grant informed consent:


  1. The parent contacts me directly and asks for a free consultation;

  2. The parent and I meet privately at a mutually agreed-upon location (there’s no issue with the adult child merely driving their parent to meet with me);

  3. The parent and I can both verify that there are no possible distractions or influences present;

  4. I am able to fully evaluate the parent’s physical and mental state and a general idea of their estate planning goals;

  5. Once the parent gives me their informed consent, the adult child(ren) can be brought into the meeting to discuss further details.



Having said all this, it still may not be too hard to find lawyers who may be more flexible about details such as how they meet with their client, but the question is: at what cost?


If the ultimate goal is the successful execution of a well-drafted estate plan, then taking shortcuts such as jeopardizing the integrity of the estate plan will undermine this goal for the client and possibly lead to malpractice claims against the drafting attorney.

My goal for all my clients is that we do our job well and in line with all our fiduciary duties, even if that may lead to some inconveniences and extra steps.


If you need to speak to me about your estate planning needs, feel free to contact me at 805-424-3131 or visit my website at www.interplaylegal.com where you can read more about my services and even book your first connection call.


I provide Estate Planning and Debt Relief Solutions for Your Peace of Mind.


Please note that this blog post was for informational purposes only and does not intend to create nor does it create an attorney-client relationship. Nothing in this post is meant to provide legal advice.