At Cipparone & Zaccaro, we regularly receive a call from a child who wants to assist his or her parent with an estate plan. Often, the child schedules an appointment for us to meet with the parent or the child brings the parent to our law office.
In the first meeting, we must clarify who our client is. In many cases, the child is already one of our clients. As you can imagine, this creates an ethical dilemma that must be carefully navigated. When a parent hires one of our lawyers to create an estate plan, we make it clear that the parent is the only one to whom we owe a duty of competence, diligence, loyalty and confidentiality. We have this duty regardless of who pays our fee.
Initially, many people are surprised at learning that we have an ethical dilemma. The child helping the parent may be more involved with the parent’s care than other siblings. Nevertheless, the lawyer’s duty is to make it clear that in order to avoid any potential conflicts of interest or any appearances of impropriety, the firm only represents the parent when drafting the parent’s estate plan.
A lawyer has a duty to keep a client’s confidences. This means the lawyer has to protect information and communications between the parent and the lawyer by keeping them confidential. At that point, the child may be asked to stay in the waiting room while the lawyer meets with the parent. This practice is purposely done for the parent’s protection, which is a goal that everyone agrees on. Meeting with the parent privately not only gives that person the opportunity to think about what they want and explain it to the lawyer but it also provides the lawyer with assurances that the client really understands what’s going on and is making choices that aren’t influenced by anyone else.
If the child were in the same room as the parent and the lawyer, did most of the talking, and answered most of the questions, it would be very difficult for the lawyer to determine whether the wishes conveyed were those of the parent or the child. If one child is allowed to participate in the discussion, the other children of the parent could challenge the estate plan at a later date. This can lead to family feuds and no one wants their estate plan to cause division within their family.
Obviously, there will be times when we – the lawyers – will conclude that the parent does not have the capacity to sign estate planning documents. In that case, our advice will include recommending other options to the client and their family. Ultimately, however, our role is to draft an estate plan that captures the parent’s true intent.
The safer practice is for the child to stay in the waiting room while the parent consults with the lawyer. This practice greatly decreases the chances of a subsequent legal challenge. The lawyer does not want the parent’s Will or Trust challenged at a later time because the lawyer thought it was okay to allow a child to participate in the parent’s estate plan.
If you have questions related to our ethical duties, please don’t hesitate to call the estate planning attorneys at Cipparone & Zaccaro, PC.
