It is common for individuals beginning the estate planning process to assume it is best to have their adult children join them in the initial meeting with an estate planning attorney. Likewise many well-meaning adults want to help their aging parents get affairs in order by arranging the initial estate planning meeting. But is this always a good idea?
This issue comes up often in the estate planning and elder law field and invokes questions on the lawyers’ Rules of Professional Responsibility. All attorneys are governed by these ethical rules, dealing with such things as client confidentiality and conflicts of interests.
When it comes to client confidentiality the attorney must determine who the client is- the individual looking to draft an estate plan or their adult children- and the attorney owes confidentiality to that particular client. The client is the person whose interests are most at stake. In this case, it is the parent. The attorney must be certain that they understand your wishes, goals and objectives. Having your child in the meeting could cause a problem if your child is joining in on the conversation, which may make it difficult for the attorney to determine if the wishes are those of your child, or are really your wishes.
Conflicts of interest arise when another party’s interests are adverse to those of the clients. Especially when representing elderly clients, there may be concerns that the wishes and desires of a child may be in conflict with the best interests of the parent. For example, in a Medicaid and long-term care estate planning context, the attorney may explain various options and one of those may involve transferring, or gifting, assets to children. The child’s interest (purely from a financial aspect) would be to receive this gift. However, that may not be what the parent wants, or feels comfortable with. The parent may be reluctant to express those concerns to the attorney if the child is sitting right next to the parent in the meeting.
Also in the estate planning realm, the attorney will need to make a determination concerning the client’s competency. Attorneys are usually able to assess a client’s ability to make decisions during the initial meeting. Having a child in the room may make it more difficult for the attorney to determine competency because the child may be “guiding” the parent and finishing the parent’s thoughts in an attempt to help.
While it can certainly be helpful for adult children or other individuals to be involved in the legal process, it is also important for the attorney to consult individually with the client on the matter.
The American Bar Association has published a pamphlet on these issues titled “Why Am I Left in the Waiting Room?” that may be helpful for you and your child to read prior to meeting with an attorney.
