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Why I Meet Alone With My Estate Planning Clients |
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Quite often an elder person's child brings his or her parent to an appointment with the parent's lawyer for the parent to make a will, power of attorney, representation agreement, or other estate planning document. In some cases the parent may have an ailment, such as trouble hearing, or have short-term memory problems. The child may want to assist the parent in a meeting with the lawyer. Indeed, the parent may feel more comfortable with the child present.
I leave the child (or whoever is accompanying my client) in the waiting room. Why?
First, I need to make sure that both the parent and child understand that if I am assisting the parent with his or her estate planning, the parent is my client. The child is not my client. It becomes confusing if I am meeting with both at the same time.
Secondly, in some cases there may be a potential conflict of interest between the parent and the child. For example, the child may want a larger share of the parent's estate than the parent wishes to leave the child.
Thirdly, I have an obligation to keep my client's information confidential. I can only give divulge what a client tells me if I have my client's permission. If someone else is in the room, my communications with my client are no longer private. My client may not speak as freely with me about any concerns my client has about a child, if the child is in the room.
Fourthly, I have to assess my client's capacity to make a will, or engage in other estate planning. I do this by asking my client basic questions about his or her family, assets, wishes, and reasons for any estate planning decisions. If my client knows his or her family, assets, understands the nature and effect of a will (or other estate planning documents) and answers questions about his or reasons rationally, then he or she has capacity to do estate planning. I cannot assess my client's capacity, if someone else answers for him or her.
If my client is giving the child a power of attorney, or appointing the child a representative in a representation agreement, I will often invite the child into the meeting after my client has given me his or her instructions. I first get my client's permission to discuss the power of attorney or representation agreement with the child.
In most cases, my meeting alone with my client is a routine precaution.
In some cases, it becomes apparent that meeting with the parent alone is absolutely essential. For example, the parent may have a good relationship with the child who takes the parent to a lawyer's appointment, and be estranged from another child. If the parent implement's an estate plan that favours the one child, the estranged child could challenge the estate plan in court. The estranged child might say that the parent did not have capacity to implement the estate plan, or that the favoured child unduly influenced the parent. It would be very difficult for the parent's estate planning lawyer to defend the estate plan in court if he or she took instructions from both the parent and the favoured child, especially if it appears that the lawyer was representing both the parent and child together. |
