Helping a loved one through the estate planning process
My mom and I email back and forth a couple of times a week. She lives a few states away, and email is the perfect way for us to keep in touch during the week between our weekend phone calls. Recently an email with the subject line “Estate Planning Appointment” popped up in my inbox. After a few years of mentioning that she and my dad need to make some updates, there was finally a date and time set to meet with an attorney in their town. Mom emailed me to see if I would come along. She scheduled the appointment so it will coincide with my upcoming trip home later this fall.
The attorney who originally helped my parents in the late 1990s has since retired, so we will meet with another attorney in the same law firm. Anticipating this upcoming meeting caused me to reflect upon the qualities of the most helpful family members or friends who have accompanied my clients to their appointments. Here are a few best practices to keep in mind if you find yourself in this role. “Client” describes the person who has the attorney-client relationship and “helper” describes the person invited to the meeting by the client.
Define your role. The helper should ask the client to describe what they envision the helper’s role to be. Listen closely so you can align your actions with their expectations. Some clients want helpers to come to every meeting and be very involved in the process. Other clients only invite helpers once everything is signed and finalized; this is usually a family meeting for the attorney to explain what decisions have been made, and field any questions from the helpers. And still other clients simply want the helper to drop them off at the appointment, and then come back to pick them up for lunch afterwards so client can share with them what happened during the meeting.
Keep in mind that while the client and attorney have attorney-client privilege, which means all of client’s information is confidential on the attorney’s side, this does not exist between client and helper. The helper can repeat any information revealed during the meeting to anyone he chooses, such as a spouse or other family member. Client should be clear about his or her personal wishes for confidentiality. Additionally, client can request that the attorney not discuss certain topics or reveal certain information in the presence of the helper. For example, client could tell attorney that helper is not to know any specific numbers about client’s assets, but to just speak generally about certain types of assets, such as “the minerals,” or “the Edward Jones investment account.”
Write down questions and concerns. The client and helper should have a brief meeting before the appointment to write down the most important topics to discuss. This ensures client doesn’t walk out to the car and realize they forgot to ask an important question. You can even send this to the attorney ahead of time. Additionally, double-check that client has filled out all required paperwork prior to the appointment.
Take notes. This will give everyone something to refer to during later discussions. I make a habit of taking notes during medical appointments for myself and my children. Everything seems clear when the doctor is explaining it, but if I try to explain it to my mom during our next phone conversation several days later, I find some details have escaped me and I jumble up the terminology. She is a retired nurse, so she knows when I get my wires crossed about medical details. Similarly, certain legal terms and concepts are often new to clients and helpers, so writing them down with enough information to jog your memory can be extremely helpful to keep the estate planning process moving forward. Of course, always ask if you have a question and your attorney can review it again or explain it another way. Also, you can certainly ask the attorney to send a memo or letter summarizing his or her recommendations and to list tasks you are to complete before the next meeting.
Give input only when appropriate. Resist the urge to interrupt the client and let them finish their conversation with the attorney before providing input. Accept that you may disagree with a decision that client makes. Redirect questions back to client if they lean on you to make choices for them. Ask for clarification if you perceive client did not fully understand a topic that was discussed. Rephrase information back to the attorney to confirm your understanding and gauge the understanding of the client. For example: “So your recommendation is that Mom and Dad sign a life estate deed for the north quarter of land to help protect it from being sold if they need long-term care in the future. But doing so means they cannot sell the quarter unless all of us kids agree. Mom, Dad, are you comfortable with that?”
While discussing the legal concept of undue influence is beyond the scope of this article, know that having a helper present at a meeting can be a very positive and helpful thing, but in certain cases it can raise questions about the helper’s motivations. Respect any instructions you receive from the attorney or client to step out of the room or otherwise leave the meeting if asked. It may be necessary for the attorney and client to speak in a fully confidential environment. Some attorneys do this as a matter of course to note their file that client told them her wishes while nobody else was present, so do not take it personally.
Understand what comes next. Before the end of the meeting, each person should have an understanding of what they need to do. The helper might be in charge of dropping off abstracts at the attorney’s office or emailing in client’s final choice for health care agents.
Also, the attorney may discuss with client whether he or she should sign an attorney-client privilege waiver as to the helper. If so, this allows helper to contact the attorney after the meeting and have conversations that did not include client (although client would be notified of these interactions). This may or may not be appropriate given your situation and level of involvement.
Whether you are the helper or the client, following these recommendations will help the estate planning process move smoothly from start to finish.
This article does not constitute legal advice. Each individual should consult his or her own attorney.