It is common for individuals to want their adult children involved when they meet with their estate planning attorney. It is also common for adult children to want to be involved with their aging parents’ meetings. But is it wise to have your adult children involved?
This issue typically arises in the area of estate planning and elder law. While family involvement is important, there are several reason attorneys prefer to meet with individuals without their adult children.
The reason? Attorneys are bound by “Rules of Professional Responsibility.” While the ethical rules encompass a wide variety of issues, there are four major rules that estate planning and elder law attorneys are required to follow.
• Client identification: Every attorney has an ethical obligation to clearly identify who their client is. A client is the person whose interest is most at stake in relation to the estate planning or legal problem.
Per the ethical rules, the client – and only the client – is the only one to whom the attorney has professional duties of competence, diligence, loyalty and confidentiality. This is true regardless of who is paying the bill.
Therefore, when an individual comes to an attorney for his/her estate plan, said individual is the client, not the individual’s children.
• Conflicts of interest: Every attorney has an ethical obligation to avoid conflicts of interest. A conflict of interest is when another party’s interests are averse to those of the clients. When representing an elderly client, sometimes the wishes and desires of his/her adult child may be in direct conflict with the best interests and wishes of the elderly client. The elderly client may be reluctant to voice his/her concerns if the child is involved in the meeting.
Therefore, to eliminate the conflict of interest and to ensure any documents or legal problems are handled based upon the clients wishes, it is vitally important to meet with the client alone. This creates a space where the client is comfortable and able to discuss matters freely and candidly with his/her attorney.
• Confidentiality: Every attorney has an ethical obligation to keep communications and information between the attorney and the client confidential. Meaning, attorneys cannot share information with adult children without the client’s approval. Each client’s desires for how much information is shared is different and the attorney must respect the client’s desire for confidentiality.
• Capacity: Every attorney has ethical obligations in working with clients whose capacity for making decisions is diminished. Assessing a client’s capacity is part of getting to the know the client.
Therefore, meeting privately with a client gives the attorney the ability to ensure the client understands the issue and is making his/her own choices. When adult children answer all the questions, it is difficult for the attorney to adequately assess the client’s level of understanding.
For attorneys, being clear about who is the client, protecting confidentiality, and assessing capacity protects not only the client, but the adult children and family too.
Family and friends who maintain a safe distance from the counseling and executing of the legal documents are less likely to be accused of undue influence. No attorney wants their client’s estate plan undone because the attorney allowed the family to be too involved.
So, while family involvement is important, understanding the ways legal services are provided is equally important, and adult children or family members should not be alarmed or offended when they are asked to “wait in the waiting room.”
Rebekah Thompson is an associate attorney with Elder Law & Estate Planning Center. hiltonheadelderlaw.com