January 6, 2017

When the attorney shuts you out

Most family caregivers are shocked to be told by an attorney to stay in the waiting room when bringing their loved one to create a will or trust. If you are the one paying for the visit, this can feel doubly surprising!

As much as you want to help your relative, your attorney is actually doing you and your loved one a favor by taking you out of the process. The single most common lawsuit when contesting a will or trust involves one family member accusing another one of ‘undue influence’. This accusation is a lot less likely to stick if the attorney meets with your relative alone.

The four Cs of ethical conduct
The job of an attorney is to be an advocate for the client’s wishes, and ONLY the client’s wishes. In order to do that, The American Bar Association says attorneys must follow four principles.

1. Client Identification. The attorney must be certain that everyone knows ‘who is the client’. Even if you are paying for the bill, your relative is the client.

2. Conflict of interest. Most often attorneys will accept only one family member as a client. This way the attorney is able to go fully at bat for that single person and not be worrying about obligations to anyone else. (An exception may be made in the case of a married couple. The law views them as a single entity.)

3. Confidentiality. All discussions between a client and attorney are private unless the client specifically gives permission and requests for others to be involved. Confidentiality is why an attorney may not be able to share pieces of information with you.

4. Competency. Because many elders have memory loss issues, the attorney must determine if the client is able to understand the consequences to his or her decisions. The best way to assess this is to meet with the client alone.