There are very good reasons why you might be left in the waiting room when helping your parent with their estate planning.
You made the appointment – you usually do. It was your idea for your parents to come see an attorney in the first place! You took off of work so that you could be part of this meeting. You know all of your parents’ wishes and can possibly communicate them better, which is why they asked you to come. You are already joint on all of their accounts because your parents prefer that you do their business and handle things. They “raised you right” so that during this time in their lives, they could trust you to take care of this sort of thing. So why is this attorney asking you to wait in the waiting room? Why are you being excluded from this meeting? How will you answer your parents’ questions and explain all that lawyer-talk after the meeting? You feel surprised and frankly a little put out.
Before you spend your waiting room time brewing and getting more upset, let me explain. Regardless of who made the appointment, who does the talking, or who pays the bill, if we are helping your parents with a legal issue, then that parent is the client in this situation. You might do all of your closings and have your own estate planning file with this office, but for purposes of updating your parents’ wills, Medicaid planning, or any other legal matter your parents might have, your parent is our client. Our ethical duties, as such, are to them.
By meeting with your parents alone, we are also protecting them, their estate plan, and probably you from potential future challenges and claims of incapacity or undue influence. First of all, we need to be able to gauge each of our client’s capacity to pursue the legal work requested. We need to make sure they understand the implications of what we are doing. We need to hear their estate planning wishes or other problems as they understand them. In the event of a challenge or will contest in the future, we might be called to testify. If you are in the waiting room when your parents meet with us and sign their will, then the will is less likely to be invalidated based on a claim that you exerted undue influence over your parents and forced them to do anything.
So bring a book or look forward to catching up on Candy Crush or Facebook while we sit down with your parents. We promise we will take really good care of them, answer all of their questions, and, with their permission, we might even ask you into the meeting when the time is right.
For more explanation on attorney ethics as they relate to this situation, see the ABA brochure: Why am I left in the waiting room? Understanding the Four C’s of Elder Law Ethics
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