Most estate planning attorneys receive inquiries, on a somewhat frequent basis, along the lines of, “I would like to do estate planning for my parents. How can I start this process?” The answer, generally speaking, is that a person cannot make an estate plan for another person any more than they could exercise for them, take their driver’s license test for them, or receive a COVID-19 booster shot on their behalf. Why?
First, estate planning is a highly personal and individualized process. Who will administer the estate? How will the assets be distributed? Should a trust be used for one or more of the beneficiaries? What charitable distributions should be made? Who should care for pets? What strategies should be employed to address potential estate tax liabilities? All of these decisions, rightfully, rest with the person signing the estate planning documents. With very limited exceptions involving either a power of attorney, guardianship, or conservatorship, these choices cannot be made by a third party.
A second factor that comes into play is the attorney-client relationship. Similar to the physician-patient relationship, the core principle for any estate planning attorney is to vigilantly protect her client’s confidentiality. An attorney has an ethical responsibility to preserve the confidentiality of communications between the attorney and her client. This means that the attorney must communicate directly with a client, with no outside interference, describe options to a client, and ensure the client’s informed choices are included in the final documents.
A third factor is to protect the validity of the estate planning documents and decrease the likelihood of a successful challenge to the validity of those documents. Suppose a child, spouse, or friend is present during the attorney-client communications, even with the client’s consent? Because a third party is present, the conversation between the attorney and the client may no longer be considered confidential. In addition, the presence of an interested third party can raise questions regarding the validity of the documents to be signed due to potential issues involving incapacity or undue influence.
Regarding capacity, if a client has testamentary capacity, that client should be able to communicate with an attorney one-on-one absent the need for any third party to be involved, with the possible exception of an independently certified interpreter due to language barriers or a hearing disability. And, regarding undue influence, if the person purportedly assisting the client is also a beneficiary of the client’s estate, this raises concerns for obvious reasons.
If the client lacks testamentary capacity, that does not mean that a third party should “do” the estate planning for them. A better approach in these circumstances would be for a third party to discuss their concerns with an elder law attorney to determine the best approach – which may include guardianship and conservatorship.
Encouraging your loved ones to engage a lawyer and complete their estate planning is a lovely gesture. But attempting to take this action for them is problematic on numerous levels. When it’s time for gift-giving, better to stick to flowers and chocolates – and leave the estate planning to the person who ultimately needs to sign at the dotted line.
This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.