When the elderly need to update a will or modify other important estate planning documents, it’s not out of the ordinary for an adult child to accompany them to their attorney’s office. It makes sense: Many seniors face mobility challenges and may even live with a son or daughter. In some cases, they may even lack the financial resources to pay for a lawyer. In these cases, their adult child may cover the cost of the attorney’s fees.
When it’s time for mom or dad to meet with the lawyer, however, the meeting should take place in private – without the adult child’s presence. Although it’s great to see adult children supporting their elderly parents and encouraging them to update their estate documents, the attorney-client privilege still applies to communications, including in-person meetings, between the senior client and his or her attorney.
The Attorney’s Responsibilities to the Senior Client
The law requires attorneys to avoid conflicts of interest, which means they can’t represent clients with competing interests. An attorney who permits an adult child to observe a meeting with an elderly client violates this obligation. The attorney must adhere to this requirement regardless of who’s paying the bill.
The attorney’s additional responsibilities include:
Maintaining Client Confidentiality
Attorneys have a duty to keep client communications confidential. This means an adult child isn’t entitled to receive copies of letters or emails the lawyer sends to mom or dad. Likewise, an adult child has no authority to “review” or proofread a parent’s will or other estate planning documents.
Determining a Client’s Competence
Attorneys who deal with seniors must frequently determine whether their clients are competent to handle their own decision-making in the context of estate planning. To do this, an attorney must speak to a client privately, removed from the potential influence of an adult child. Close relatives, including children, have a tendency to “speak for” their older loved ones, which can shield mental deterioration.
Family dynamics are rarely straightforward, especially when it comes to probate. It’s common for one adult child to oversee the majority of an elderly parent’s care while the other children have less involvement. Unfortunately, this uneven participation can cause the less involved family members to grow jealous and suspicious regarding a caretaker child’s influence and level of control over the parent. Eventually, these feelings may evolve into allegations of undue influence, which can lead to a will contest and other litigation. Preserving the attorney-client privilege by excluding caretaker children from estate planning meetings can go a long way toward diffusing these contests.
Stuart, Florida Estate Planning Law Firm
At Gregory H. Zogran, P.A., I help older adults create estate plans to protect their wealth and preserve a strong legacy for their loved ones. Don’t put it off another day. Call me today at (772) 220-9699 to discuss your goals.
This website has been prepared by Gregory H. Zogran, P.A. for informational purposes only and does not, and is not intended to, constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.