ETHICAL ISSUES IN ESTATE PLANNING FOR THE ELDERLY OR IMPAIRED CLIENT CITATION MATERIALS

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1 Rule Failing to Act Competently ETHICAL ISSUES IN ESTATE PLANNING FOR THE ELDERLY OR IMPAIRED CLIENT CITATION MATERIALS Rule Avoiding Interests Adverse to a Client Rule Avoiding the Representation of Adverse Interests th Duty of Undivided Loyalty to Client Flatt v. Superior Court (1994) 9 Cal Rule Communication; see also Business & Professions Code Section 6068(m) Business & Professions Code Section 6068(e) Duty to Keep Client s Secrets Proposed Rule 1.14 Client with Diminished Capacity Business & Professions Code Section 6068(m) Duty to Keep Client s Reasonably Informed of Significant Developments Regarding the Matters in Which the Attorney Agreed to Provide Legal Services Business & Professions Code Section 6068(a) Duty to Support California Law Business & Professions Code Section 6068(d) Duty to Never Mislead Any Judicial Officer by an Artifice or False Statement of Fact or Law SCENARIO 1 Client is 93. She lived independently until a few months ago and just moved into assistant living. She never married and has no descendants. She knows what her assets are and their approximate values. She wants to leave her estate to her three nieces and nephews in equal shares. When you ask for her wishes if a niece or nephew does not survive her, she cannot understand the concept of providing for an alternative disposition. What ethical issues are present? Should you prepare an estate plan for client? If yes, what documents should you prepare for client? What steps should you take to ensure that the plan will implement her wishes? 1

2 SCENARIO 2 WITH VARIATIONS 1. You receive a telephone call from a child wanting to set up an appointment for his mother, whom you have not met. When you suggest that the mother telephone you to make the appointment, he says that she is very deaf and asked him to make the appointment. What ethical issues are present? Should you let the child make the appointment? 2. When you meet with the son and mother, the son brings a lap top computer to make notes. As you talk to the mother, she cannot hear everything that you say. The son paraphrases the substance of what you say to mother and shows her what he wrote on the computer. Mother replies appropriately to your questions. What ethical issues are present? Should you allow the son to stay in the meeting? 3. Mother tells you that she has two children, the son who is present and another son who lives in Los Angeles. She describes her assets and brings her 1996 will that leaves everything in equal shares to son and his brother, Mother tells you in son s presence that she now wants to leave 60 percent of her estate to the son who is present because he has been very attentive to her and 40 percent to her Los Angeles son. The sole reason for the difference is that she is closer to the son who is present. What ethical issues are present? Should you create the plan that the mother wants? What steps should you take to ensure that the plan will be upheld if the Los Angeles son brings a contest? SCENARIO 3 WITH VARIATION 1. You previously represented a husband and wife. The estate plan that you prepared for them in 1985 consisted of loving wills with everything going on the death of the survivor in equal shares to their three adult children. At the meeting, wife tells you that her short-term memory is very poor and that she likely will not remember what you tell her at the meeting. Both husband and wife tell you that they want the same dispositions as their earlier will, but husband tells you that they want to use a revocable trust instead of a will. Wife agrees with husband because she trusts him completely, but wife has difficulty understanding the concept of a revocable trust. What ethical issues are present? Should you prepare a revocable trust to carry out their estate plan? 2. Same scenario as in the preceding paragraph except that husband tells you that they want to leave nothing to one of their three children because he has a serious substance abuse problem. Wife says that she wants to help that child but that she will go along with husband. She says that she has no other choice because she is so dependent on him. What ethical issues are present? What should you do? 2

3 SCENARIO 4 WITH VARIATION 1. You prepared a revocable trust for husband and wife 15 years ago. It gave the survivor broad powers of appointment over the marital and bypass trusts and, on the death of the survivor, created trusts for their children because of their youth and named uncles and aunts as trustees and successor trustees. Father died three months ago and mother has been told she has less than six months to live. Mother is the sole trustee. She is weak from radiation treatment but competent. The children have been helping with her care and in administering the trust and have been reading the 15-year old trust. They want to meet with you because they do not understand the trust. They do not want someone else managing their money. What ethical issues are present? Should you meet with the children? Should mother be present? 2. At the meeting in mother s presence, the children tell you that they do not think that their shares should be held in trust. What ethical issues are present? What should you do? SCENARIO 5, WITH VARIATION 1. You have represented husband for many years. You do not represent his third wife. Although his mental faculties appear intact, he has become more financially irresponsible over the years. He has resisted your advice to have his third wife, who is the successor trustee of his revocable trust, take over managing his financial affairs or to have a conservator of his estate appointed for him. You learn that his third wife recently divorced him and, as a result of a property settlement agreement in which he was not represented by counsel, she owns a good deal of his former separate property. What ethical issues are present? What should you do? 2. Same scenario as in the preceding paragraph, except that the client s accountant is now the conservator of his estate. The accountant calls you and asks you to represent him. What ethical issues are present? What should you do? SCENARIO 6 You represent an 85-year old woman with no spouse and no descendants whose $5 million revocable trust on her death provides for her three nieces. The client s health has declined in the past five years because of congestive heart failure. She has had a caretaker for five years whom she regularly sees six days a week, 12 hours a day. Your client tells you that she wants to revise her estate plan to leave $300,000 to her caretaker to purchase a home. You tell your client that the gift to the caretaker will be presumed to be the result of undue influence under Prob. C and that she will need to have a certificate of independent review. She wants you to prepare the certificate of independent review. You believe that the gift likely is the product of undue influence. What are the ethical issues? Should you amend the trust to include the gift to the caretaker? If you amend the client s revocable trust to include the gift, should you prepare a certificate of independent review to validate the gift? 3

4 4

5 SCENARIO 7 You represent a couple in their 70's. Their daughter calls you. She is a beneficiary and a successor trustee under their estate plan. She wants you to prepare an estate plan for her and her husband. What are the ethical issues? Should you represent daughter and her husband? SCENARIO 8 You represent a trustee of a deceased settlor s trust, whose administration is nearing completion. Among the assets of the trust are a taxidermy collection of preserved wild animals that the settlor had killed on hunting expeditions in Africa. The trustee tells you that he needs to sell the collection in order to have money to pay estate taxes. You discover that under California law it is a misdemeanor to sell specified animals that are endangered species. You ask the son for a copy of the appraisals to see if the animals are among those listed in the statute. The trustee tells you that he going to sell the collection whether or not it is a misdemeanor under California law because he is personally liable for the estate taxes. What are the ethical issues? Should you withdraw from representation? SCENARIO 9 You prepared a trust for a client, a former investment advisor. Shortly before he died, the client told you that he had embezzled funds from his clients. The person named as trustee calls you and asks you to represent him. What are the ethical issues? Should you represent the trustee? E:\Neil\Misc\Talks\LAS 2012\Rules & scenarios audience wpd Neil F. Horton 5

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