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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

Alone Time: The Importance of Private Meetings With Senior Clients

Posted: 5.30.2019  |  Author: 

A variety of circumstances bring us clients looking to create or revise their estate plans.  The birth of a child, for example, often results in a first will because the new parents want to nominate a guardian – someone to raise their child if they cannot.  Years later, those children are grown, have no need for a guardian, and are ready, when the time comes, to take on the responsibilities of personal representative.  Grandchildren and business succession present new concerns, so revisions and updates are necessary.  Vacations, surprisingly, motivate clients to come in and update their documents, too – the small risks associated with travel providing the encouragement.  Finally, clients often call during the later stages in life, to update powers of attorney before they take effect, finalize the planned distribution of their estate, and to address concerns about the cost of long-term nursing care.

 

This last group of clients presents unique concerns – not just legal but from a practitioner’s viewpoint as well, often because clients are accompanied during their meeting by adult children – the very people who stand to benefit by the terms of a trust or will.  In almost all situations, those adult children are there with the very best of intentions.  Mom or Dad, may no longer drive, so someone had to get them to the office.  Or, the son or daughter who’s come along is helping the parent with finances under a General Durable Power of Attorney and has a firmer understanding of assets and what needs to be done to protect them.  In these ways, the child’s presence can be as helpful to me as it is to the client.

 

One bad apple spoils the bunch, though, and there’s always a possibility that an adult child or caregiver has joined our meeting with more sinister intent – more concerned with their own best interest than with the parents’.  These concerns become more pronounced when the parent does little talking, and, instead, the child is giving me direction on how to prepare documents; when I learn that the client is proposing an unequal distribution of assets, with the accompanying child receiving more than his or her siblings; or, when an unrelated caregiver accompanies a client who wants suddenly to give that caregiver access to the client’s finances.  Possibly, these visits are the result of undue influence – a child or third party using greater access to and influence over an aging client, to manipulate that client’s thinking to their own benefit, and usually against those who would most naturally receive the client’s estate.

 

I repeat: almost every adult child who walks into our office with a parent is there for all the right reasons.  But it’s rare when I can claim enough knowledge about the relationship to be sure.  For this reason, at some point during the meeting, I’ll ask everyone other than the client to leave so we can meet alone.  I use that time to assess the client’s independence, understand his or her motivation, make sure he or she understands the details of the estate plan and that they are the details of his or her voluntary choice.  Understandably, some of these conversations are shorter than others.  If no red flags are raised, it’s more a formality than anything else.  Still, it’s important that the conversation take place.

 

The importance isn’t always related to the people in the meeting, and sometimes the family members present fail to grasp that, even taking offense when I ask for privacy with my client.In preparing estate plans involving an unequal distribution of assets, however, the private meeting, during which I assess the client’s independence and free will, is as important toward defending that plan as it might be toward challenging it.In other words, when a client treats his or her children differently, particularly when those reasons are not known to all the children, the biggest concern is not the lawyer but the other children.  A legal challenge from another child, claiming undue influence or self-dealing on the part of one who was favored, can be defeated by a clear record in my file of the steps I took to ensure that the client was exerting his or her own free will.In this way, my work is designed to prove that the plan is above reproach and entitled to the Court’s protection, and the private meeting is far more convincing in that respect than a meeting at which the favored child is present, possibly influencing the parent in subtle ways.

 

Meeting a client privately accomplishes one additional important task: it clearly reminds all involved who my client is.  Sometimes the child not only accompanies the parent to the meeting, but also schedules the meeting and, in advance, articulates what the meeting’s purpose will be.  While this can be helpful, it can also confuse the issue of who my client is, especially in the mind of a child who schedules a meeting expecting specific outcomes.  Ultimately, what the client wants is what I need to do, even if that conflicts with the child’s expectations.  A private meeting helps remind all present of that fact.

 

Pursuing updates or changes to an estate plan can be especially important in the later stages of life.  Adult children can be extraordinarily helpful in facilitating those updates, but the requirements of my job demand that I verify the wishes of my client, and that there be no confusion as to who my client is.  Accordingly, no one should be surprised or offended when I ask for some alone time with a senior client.I’m just doing my job.

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