Estate and Incapacity Planning - Privacy Requirements

Friday, October 14, 2011

    When a person is meeting with a lawyer to discuss a Will or a Trust, or other estate planning documents, it is very important that the person be alone with the lawyer.
    This is equally true when a person is meeting with a lawyer to discuss a Power of Attorney or other such document.

    The reason for this is that the documents will only come into play after the person has passed on, or when the person is incapable of handling his or her own affairs.

    The one exception to this general rule is when a husband and wife meet with a lawyer together to plan their future.  Even then, each spouse should be advised that the lawyer can only assist them to the extent that they are each in agreement, and that the lawyer can only represent them both if they both understand and have waived the conflicts of interest inherent in the situation.

    Returning to the more general discussion, if a person who is discussing a Will, or a Trust, or a Power of Attorney were to meet with their lawyer while in the presence of some other person, such as a friend or an adult son or daughter, the document that would be generated would be open to attack.

    It is very important to prevent such an attack by meeting alone with a lawyer.  If this is not done, when the time comes to use the document, someone could argue that it was really the son or daughter or other person had told the lawyer what to include in the document, or who to pass property to.

    Someone could also argue that the person for whom the Will or Power of Attorney or Trust was being made was susceptible to undue influence, and would have given other instructions to the lawyer if they had been able to meet alone with the lawyer.

    While the assistance and involvement of family and friends can be very important in many areas, this is one area in which a person must work alone with their lawyer.