All too often a senior client will be accompanied to a consultation appointment by one or two of their children or loved ones. While it is often helpful for a senior client to bring their children to the consultation, for understanding of information and guidance, it can also create certain unexpected consequences or issues that must be discussed.
First of all, it should be remembered that the attorney’s relationship is with the individual for whom the attorney is providing the legal advice and preparing the documents for. The attorney does not represent the entire family. The presence of the non-client in the consultation actually nullifies the attorney-client confidentiality privilege that makes the conversation and communications between the client and attorney confidential. While generally this is not an issue for most consultations, other than those dealing with criminal matters or matters that are being litigated; it is still an issue to be dealt with. In some instances, I will walk into a consultation expecting to meet with one or two people and learn their entire family is present. This often requires that the attorney first identify and make clear to all in the room whom the client is. And also speak with the client without others in the room first to obtain confirmation that they wish to have their relatives present during the consultation. Additionally, I will advise that any conversation/communication I have with the client in the presence of others is not a confidential and privileged communication.
The presence of multiple family members can also create an environment where it is more difficult to ascertain the true wishes and desires of the client. For example, the client might be reluctant to identify the child they want to be the executor of their Last Will, trustee of their Trust and/or agent under their Power of Attorney so as to not pick one child over another. Thus, the question for the attorney becomes whether or not to suggest he meet with the client alone and ask the family members to step out of the room or ask the potential client if they want all to remain. Asking the children to step out of the consultation will generally allow the client to speak more freely and allow the attorney to attain the true wishes of the client. Additionally, meeting alone also helps the attorney better gauge the competency of the client.
For example, in many consultations I find myself asking the client a question and getting an answer from their child or loved one, I will often ask the client about the specific terms of their Last Will and/or Trust and the child responds saying “… we would like…”! This is not acceptable from an attorney-client relationship perspective. The attorney must ascertain what the wishes of their client are, not their children.
It is much better if the family member does not cut off their parents and/or loved one’s and let them express their wishes freely and openly; and respect their reasonable wishes. However, they should ask any questions they have about the attorney’s advice and recommendations.
Finally, the children and family members should also understand that the attorney cannot take instructions and directions from someone that is not their client. That the attorneys cannot send the clients documents to others without the consent of their client(s). For example, after draft documents are sent to the client we will receive a call from the client’s child proposing changes to the drafts. These instructions must come from the client.
While implementing an estate plan may often involve the children and loved ones of the client, it is important for all parties involved to know and understand who the client is and that any confirmation needed is not out of disrespect but, in fact, to respect and honor the wishes of the client!
*Anthony J. Enea is the managing attorney of Enea, Scanlan and Sirignano, LLP of White Plains, and Somers New York. He focuses his practice on Wills, Trusts, Estates and Elder Law. Anthony is the Past Chair of the Elder Law and Special Needs Section of the New York State Bar Association (NYSBA) and is the past Chair of the 50+ Section of the NYSBA. He is a Past President and Founding member of the New York Chapter of the National Academy of Elder Law Attorneys (NAELA). Anthony is also a Past President of the Westchester County Bar Foundation and a Past President of the Westchester County Bar Association. He is fluent in Italian. He can be reached at 914-948-1500 or at [email protected]