BY ATTORNEY SUSAN I. JEAN July 19, 2019
It is common that family members will come with a loved one to a legal consultation. Attorneys are scary (no, not really), the situation is concerning, you want to be sure your loved one correctly explains the situation and remembers the answers.
But at some point, you will be asked to step out of the conference room so that the attorney can meet with your loved one alone. Why does this happen?
It protects your loved one’s estate plan from challenges by disappointed beneficiaries.
Imagine the situation: a mother has three children. Two have been devoted to her care, one hasn’t been in touch in years. Mom comes to our appointment with the two children, who both sit in through the appointment. Mom ends up with a Will that leaves everything to the two children to the exclusion of the third. Mom passes; the Will is probated; the third child finds out that he or she didn’t inherit anything. The third child finds an attorney who challenges the Will. The litigation attorney attacks the Will by saying that the two children coerced Mom into disinheriting him or her.
It allows the attorney to be sure that your loved one is not being coerced into something that is not in fact his or her intention.
When your mother comes in to meet with me, I have no idea what the family home life is like. I don’t know if she is subject to what is called “undue influence”; that means someone pressuring her into doing something that she does not actually want to do. I can’t know this unless I meet with your mother privately.
The attorney can better assess any capacity issues when you are not in the room to give your loved one cues about “the right answer”.
We all try to protect those we love from embarrassment. This includes becoming forgetful. But part of my job is to be sure that your loved one is competent to execute the documents. Imagine that your mother is becoming very forgetful. I ask where she lives, and you give her a moment and then answer for her. I ask how many children she has, and she looks to you to remind him … “um … two” she says tentatively, but sees you disagree and corrects herself to “three”? As an attorney deciding whether I can represent her, I need to know that she is competent. Having you in the room makes this more difficult.
And … it is required by the ethical rules by which lawyers must abide. Virginia State Bar Professional Guidelines say:
A lawyer shall not reveal information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client unless the client consents after consultation …
This is true both for clients and for prospective clients. It means that I have to speak with your mother privately to know whether she will allow me to disclose information to you, or to any other family member.
All of the attorneys at The Heritage Law Group will be respectful to your loved one, but we will insist on meeting privately with the prospective client for all of these reasons.