On a regular basis, I get a phone call that goes like this. “Hello. My mother needs a Will. Can I come to your office?”
My usual response is to ask the caller if his or her mother can call me directly. Often the adult child hems and haws and says something about how his or her parent may not be able to tell me what he or she wants or needs.
We then get into a conversation that is central to the fields of estate planning and elder law: Who is the client?
It’s fine if an adult child scouts around for an attorney, calls the attorney to arrange an appointment and even transports his or her parent to the attorney’s office.
Once inside, though, a reputable attorney may take direction only from the person who is the actual client. If the idea is to prepare a Will for Mom, then Mom has to be able to tell the attorney a few important things: whom she wants to leave her property to and generally what kinds of assets she has. Mom doesn’t need to know all the legal concepts that appear in a Will. But Mom has to have a minimal level of “testamentary capacity” to be able to understand and sign a legal document.
What we can’t have is adult children directing the proceeding. My practice, when an adult child transports his or her parent to my office, is to ask the adult child to stay outside of the office while I speak to the elder alone and get a sense of what he or she really wants to do with a Will or a Trust or any other legal document. Once I’ve established what the elder’s wishes are and that the elder can articulate those wishes in her own words, then I usually allow the adult child to come in for a sort of wrap-up of the meeting. I make it clear that I am taking instructions only from the person who is my client and not from any additional parties.
