Who’s the Client?

Posted by on Jun 18, 2019

Who’s the Client?

Joseph and Janet are siblings who contacted me recently about amending their mother’s trust. Whenever I get a call like this, I wonder what is going on.

It’s fine for an adult child to call an attorney,arrange for an appointment and even transport an elderly parent to my office. But we have an important concept in estate planning called: “who’s the client?”  It’s the elder, not the rest of the family. We meet first alone with the elderly client.

The reason is that we have to make surean elderly client is capable of stating, in their own plain words, what they are trying to do with their estate plan. We need to hear them do this without prompting, let alone influence, from adult children, or anyone else. If an elderly client cannot express themselves minimally as to what they own and who they want to leave it to, then they have progressed beyond the point of having sufficient mental capacity to carry out an estate planning document.

I explained to Joseph and Janet that it would be finefor me to meet with their mom, Mrs. Gleason. She’s 90, and after her husband died five years ago, Janet and Joseph had taken her to an attorney to make a trust and the documents that go with a trust. Now Mrs. Gleason has moved into an assisted living facility and is in the process of selling her large family home.

When Mrs. Gleason arrived in my office, I asked her why she had come to see me that day.  “I have no idea why they sent me here,” she said. She didn’t know my name or what my role was. And, she said that we were sitting in Santa Rosa, when we were actually in Berkeley. She didn’t know where she lives now.  She thought she was living in Santa Rosa, which is not a place she has ever lived.

I looked through Mrs. Gleason’s existing documentsand found that she had signed the kind of Power of Attorney document that becomes effective only if someone is determined, by a physician, to be mentally incapacitated. I brought Janet and Joseph into the conversation and explained all of this to them as well as to Mrs. Gleason, who was agreeable about visiting her doctor.

It’s better, in my view, to have the kind of Power of Attorneythat does not require a doctor’s determination of incapacity. But at least Mrs. Gleason had something in writing that would eventually allow her son and daughter to be authorized to manager their mom’s finances. It would have been great if, a few years ago, Mrs. Gleason had resigned from her role as trustee of her trust, allowing one or both of her adult children to become the acting trustees. Now they will have to get a doctor to write a letter, under penalty of perjury, deeming their mom to be incapacitated, and they will need to contact various financial institutions and the county recorder to let them know that Mrs. Gleason is no longer acting as trustee of her own trust.

In this case, at least Mrs. Gleason had done an estate plan a few years ago before she her dementia had progressed. It’s always better to have something in place, even if not perfect and needing changes down the road.