The relationship between an estate planning attorney and their client(s) is one that is unique among the attorney-client relationship. Often, the client is sharing information with the attorney about their assets, families, potential conflicts, and wishes for what happens when they pass away or are incapacitated. Because the bulk of the estate planning attorney’s work truly comes to fruition when a person dies, it is paramount that the attorney client relationship is taken seriously.
However, estate planning presents two unique ethical challenges.
First, many people wait to address their estate planning until much later in life. When this happens we need to be very careful if the client has diminished capacity. All too often I am called upon by family members to draft documents for someone who does not have the capacity to sign legal documents. Ethically, an attorney must attempt to represent a client with diminished capacity to the same degree as they would represent a fully competent client. However, what an estate planning attorney cannot ethically do is have someone sign documents if they do not have capacity to do so. This is one of the many reasons we recommend that people not procrastinate in setting up their estate plan and review their planning choices frequently.
Second, I want to discuss the attorney-client privilege. An attorney has a duty to maintain confidentiality between the attorney and the client. This is one of the most sacred ethical rules that attorneys must follow. The challenge that this presents is that estate planning inherently involves families. Many clients want to involve their family members which can be helpful to include the people that will ultimately be the client’s Trustee, Executor, or Power of Attorney. However, it is important to note that when someone else is in the room for a discussion with an attorney, the attorney-client privilege is broken. That conversation is no longer confidential and this can create some problems down the road if the client later wants that information to be held in confidence.
Estate planning is a unique area of the law in that everyone needs an estate plan. At a minimum, every adult needs to have Power of Attorney documents in the event that they become disabled. Not everyone will need a DUI, divorce, patent, or corporate attorney in their lifetime, but everyone should consult with an estate planning attorney. As you engage your estate planning attorney, make sure you are comfortable and address any ethical concerns that you may have.