Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, November 26, 2018

Article on Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers

PoaNina A. Kohn published an Article entitled, Whom Do You Represent?: The Role of Attorneys Representing Individuals with Surrogate Decision Makers, Wills, Trusts, & Estates Law eJournal (2017). Provided below is an abstract of the Article.

Attorneys frequently represent clients who have a surrogate decision-maker with authority to make decisions on the matter underlying the representation. Such representations raise important questions for both attorneys and the courts in which they appear. Key questions include: From whom should the attorney take direction? With whom should the attorney communicate? If the attorney is taking direction from the surrogate decision-maker and not the principal, when should the court treat the principal as an unrepresented party?

This article provides answers to these challenging questions, thus providing both courts and attorneys with much needed guidance. Specifically, the article considers two types of surrogates: 1) agents appointed pursuant to a power of attorney for finances, and 2) guardians or conservators appointed by a court. In doing so, it seeks to inform the courts about expectations for attorney behavior so that courts can be confident that the attorneys appearing before them actually represent the persons whom they allege to represent, and can identify situations in which the attorney may be facilitating exploitation of a vulnerable person.

November 26, 2018 in Articles, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Sunday, November 25, 2018

CLE on Planning Techniques for Large Estates: Your Secrets Are Safe with Me (I Think) - Protecting Privilege When Planning for Estates

CLEThe American Law Institute is holding a webcast entitled, Planning Techniques for Large Estates: Your Secrets Are Safe with Me (I Think) - Protecting Privilege When Planning for Estates, Thursday, December 20, 2018 at 12:00 p.m. - 1:00 p.m. Eastern. Provided below is a description of the event.

Why You Should Attend

Like communications between any client and attorney, communications between a client and an estate planning practitioner may be covered by the attorney-client privilege. The estate planning process entails the sharing confidential information, but clients often take the privilege for granted, without realizing that not all communications are privileged and that in certain situations, the privilege can be waived.  

What You Will Learn

Join us to learn the nuances of attorney-client privilege in estate planning practice, steps to protect your client’s confidential information, and best practices for keeping your professional reputation intact. Using fact illustrations, this webcast will explore:  

Attorney-Client Privilege: What Is It and How Does It Apply to Estate Planners? (Rule 1.6, Rule 1.1)

Work Product Doctrine: Where Does It Come Into Play?

Working With Third Parties: How Does It Impact the Privilege?

  This practical ethics session was originally presented on April 27, 2018, at the ALI CLE course, Planning Techniques for Large Estates. The discussion is relevant to practitioners handling estates of all sizes. Register now and get a front row seat at the rebroadcast!   Questions submitted during the program will be answered by email within two business days after the program. In addition, all registrants will receive a set of downloadable course materials to accompany the program.   Need this information now? Purchase the on-demand course here.  

Who Should Attend

Estate planners handling estates of all sizes will benefit from this ethics program from ALI CLE.  
Register two or more and SAVE! Register as a group for this program and save up to 50%. Click on "Group Rates" for more information. (Offer valid on new registrations in the same delivery format; discounts may not be combined.)

November 25, 2018 in Articles, Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Professional Responsibility | Permalink | Comments (0)

Monday, September 24, 2018

Podcast: Ethical Considerations in Representing Clients in Connection With Family Businesses

ACTEC_FoundationWho is the client in the context of representing clients in connection with the family business?

To learn more about this topic, listen to the latest ACTEC Trust & Estate Talk podcast with ACTEC Fellows John Rogers of Los Angeles and Lee Osborne of Roanoke, Virginia entitled Ethical Considerations in Representing Clients in Connection With Family Businesses.

September 24, 2018 in Professional Responsibility | Permalink | Comments (0)

Friday, September 21, 2018

Clients Who Lose a Spouse Require Both Empathy and Skill

Calla-liliesAccording to a new Merrill Lynch/Age Wave Study, nationwide 53% of widows did not financially prepare for when their spouse passed away. Dan Lash, a partner at Vienna, Va.-based VLP Financial Advisors, advised calculating the value of marital property within six months of a spouse’s death. “An appraisal will determine what the gain is and set a new cost basis in the event you sell the home five years later,” said Lash.

Another study from Merrill Lynch found that among widows, four-in-10 of them found widowhood as a trigger to begin working with a financial advisor. “They are in their 70s and 80s and single again for the first time in years,” said Tom Balcom, a financial advisor at 1650 Wealth Management based in Lauderdale by the Sea, Florida.

Unlike older clients that have never been married or perpetual bachelors, widows and widowers are in mourning for their loved one. “The danger is for the widow to be overwhelmed with grief and to allow finances to take a backseat, which makes decisions even tougher to deal with later,” said Lisa Margeson, head of retirement client experience and communications at Bank of America Merrill Lynch.

“Widowed clients are often unsure and scared because they don’t want to be taken advantage of,” said Cary Carbonaro, managing director of United Capital of New York and New Jersey and 2014 CFP Board Ambassador.

See Juliette Fairley, Clients Who Lose a Spouse Require Both Empathy and Skill, Financial Advisor, September 11, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

 

September 21, 2018 in Current Affairs, Death Event Planning, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, September 14, 2018

Three Psychological Factors that Define Client Interactions

FruedEstate planners can expect to face three different psychological phenomena in their interactions with clients: transference, countertransference, and triangles in relationships. Sometimes these occurrences can be positive, negative, or simply benign. Being aware of them and their effects can increase the likelihood that they are not detrimental to your relationship with your clients.

"Transference” is a phenomenon in which people transfer feelings and attitudes, often subconsciously, from a person or situation in their past onto a present person or situation. It may involve the projection of a mental representation of a previous experience or person on to the present situation or person with whom they’re interacting. It could be prior negative interactions with attorneys, or a general idea about the current situation.

Countertransference is defined as the often subconscious response of the recipient person to the client’s actions or perceived actions. It could involve professional or income bias, as in if an estate planner has dealt with unruly or rude clients of a certain profession the planner now may believe that everyone in that profession is the same way and not be as open-minded to the new client as they should.

According to Dr. Bowen, a psychiatrist and professor of psychiatry and a pioneer in the area of family systems theory back in the 1950s, a two-person system is unstable because it tolerates little tension before one or both participants “triangle in” a third person to reduce their anxiety that the tension between the participants caused. The third entity forming the triangle could be the estate planner themselves, another family member, a deceased person, or even an inanimate object or possession.

See L. Paul Hood, Jr, Three Psychological Factors that Define Client Interactions, Wealth Management, September 6, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

September 14, 2018 in Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Thursday, August 30, 2018

Caring for Aging Parents - When the Child Watches Over the Parent

ManhattanTracey Dewart faced a daunting task last summer: moving her 84-year-old mother who suffered from Alzheimer's, Aerielle, from her Manhattan apartment to an assisted living facility in Brooklyn to be reunited with Tracey's father. To help pay for her mother’s care, Ms. Dewart relied on an investment account at J.P. Morgan Securities that her father had opened eight years prior. But Ms. Dewart found that the account had been charged around 10 times the commission that an account of that size should have been charged.

Ms. Dewart found that Trevor Rahn, the broker who handled her father's account, had sold two-thirds of the portfolio in one month, and then reinvested most of the proceeds, yielding about $47,600 in commissions, according to her attorney. A statement listed all 344 trades that month as “unsolicited” — meaning that they were the customer’s idea, not the broker’s. But Ms. Dewart, who handled authorizations for the account, said that she had not given Rahn permission for those trades.

Ms. Dewart considered taking J.P. Morgan to arbitration as allowed by the customer agreement, but she settled instead for a sum that she is prohibited from discussing.

There exists a murky regulatory territory that brokers inhabit - they are not necessarily fiduciaries, meaning they do not always have to act in a client’s best interest. Typically, brokers only have to recommend investments that are “suitable,” a lower standard.

See Tara Siegel Bernard, Caring for Aging Parents, With an Eye on Their Broker Handling Their Savings, New York Times, August 24, 2018.

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.

August 30, 2018 in Current Affairs, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Wednesday, August 29, 2018

CLE on How to Handle the Probate Process

CLEThe National Business Institute is holding a conference entitled, How to Handle the Probate Process, on Thursday, September 13, 2018, at the Holiday Inn Express Charleston-Civic Center in Charleston, West Virginia. Provided below is a description of the event:

Program Description

A Comprehensive Guide to Probate

Are you confident you can handle a probate case when it lands on your desk? Are you familiar with the proper procedures to use along with the applicable laws? This insightful course will give you detailed, step-by-step information to proficiently navigate through the process - register today!

  • Walk through the initial steps of opening a probate case with tips from seasoned practitioners.
  • Learn how to implement a complete estate timetable in order to know what needs to be done - and when.
  • Effectively guide the executor and the administrator through their various duties in the probate process.
  • Avoid problems arising from creditors' claims and insolvency with our powerful strategies.
  • Discover the secrets to confidently handling a spouse's elective share.
  • Review ways to effectively handle disagreements between beneficiaries and adhere to the guidelines of precedence in case of intestacy.
  • Follow thorough closing procedures so accounting is complete before distribution takes place.

Who Should Attend

This basic level seminar will provide those who have limited probate experience with tips on successfully handling a probate case. This comprehensive seminar will benefit:

  • Attorneys
  • Accountants and CPAs
  • Financial Planners and Wealth Managers
  • Tax Professionals
  • Trust Officers
  • Paralegals

Course Content

  1. Opening the Estate in Probate Court - Initiating the Process
  2. The Personal Representative's Responsibilities
  3. Inventory: Collecting, Maintaining and Managing Assets
  4. Handling Debts and Expenses in Probate
  5. Ethical Issues in Probate
  6. The Spouse's Elective Share and Probate Estate
  7. The Laws of Intestacy and How They May Apply
  8. Closing and Distributing the Probate Estate

Continuing Education Credit

Continuing Legal Education – CLE: 8.00 *

Financial Planners – Financial Planners: 8.00

International Association for Continuing Education Training – IACET: 0.70

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 8.00 *

* denotes specialty credits

August 29, 2018 in Conferences & CLE, Estate Planning - Generally, Intestate Succession, Professional Responsibility, Wills | Permalink | Comments (0)

Monday, August 27, 2018

Article on Running Past Landmines – The Estate Attorney’s Dilemma: Ethically Counseling the Client With Alzheimer’s Disease

Alz2Joseph Karl Grant published an Article entitled, Running Past Landmines – The Estate Attorney’s Dilemma: Ethically Counseling the Client With Alzheimer’s Disease, Elder Law Studies eJournal (2016). Provided below is an Abstract of the article:

This Article examines the ethical dilemmas faced by attorneys who represent clients suffering from Alzheimer's disease. To do so, this Article raises three (3) hypothetical case studies, and applies the ABA Model Rules of Professional Conduct, and the American College of Trust and Estate Counsel ("ACTEC") Commentaries, where appropriate, to those hypothetical case studies. Additionally, this Article proposes initiatives to ameliorate the lack of awareness and discussion of Alzheimer's disease in the law school curriculum, and finally, modest initiatives that the practicing bar can embrace to further a discussion and awareness among practicing attorneys about the ethical dilemma attorneys face in their daily interaction with actual and potential clients suffering from Alzheimer's disease. This article's objectives are twofold. First, the intention is to use this Article as a vehicle to expose law students, legal educators, practicing attorneys, policymakers, and layperson observers to the impact, medical symptoms and manifestations of Alzheimer's disease in accessible and easy to understand terms. Second, to use this Article as a tool for teaching, raising understanding, and providing guidance on a multitude of ethical considerations that law students (who will soon be lawyers) and practicing members of the bar should consider while being exposed to actual or potential clients who suffer from Alzheimer's disease.

August 27, 2018 in Articles, Current Affairs, Elder Law, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Friday, August 17, 2018

Your Secret’s Safe with Your Estate Planning Attorney... Maybe [Colorado]

ShhWhen a client's intent is at issue in a will contest suit, who better to ascertain the client's intentions than that of their estate planning attorney? However, due to client-attorney privilege, many confidential pieces of information must be included in that privilege, even after death. In  Swidler & Berlin v. United States, 524 U.S. 399, 406 (1998), the Supreme Court stated that certain things cannot be forced from the attorney as it "may result in the posthumous exposure of detrimental information concerning a client’s reputation or impose possible harm to friends and family."

Colorado allows the client-attorney privilege to extend past death, and thus the personal representative stands in for the descendant and therefore can waive the privilege. Colorado also recognizes the testamentary exception in which the attorney may, but does not have to, disclose privileged communications that would otherwise be protected if sought by the decedent’s heirs in a will contest suit.

The Colorado Bar Association Ethics Committee has also issued a formal ethics opinion that in the absence of the client or the client's representative consent to disclose information, a court order may be required.

See Lauren A. Morris, Your Secret’s Safe with Your Estate Planning Attorney, or is it?, Lexology, August 15, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.

August 17, 2018 in Current Affairs, Estate Administration, Estate Planning - Generally, Professional Responsibility, Wills | Permalink | Comments (0)

Monday, July 16, 2018

CLE on 30 Steps to Perfect Probate

The National Business Institute is holding a conference entitled, 30 Steps to Perfect Probate, on Thursday, October 11, 2018 - Friday, October 12, 2018, at the Embassy Suites by Hilton Jacksonville Baymeadows in Jacksonville, Florida. Provided below is a description of the event:

Program Description

Gain Valuable Strategies for Every Step of the Probate Process

Are you confident you're taking advantage of every strategic opportunity the probate process has to offer? Experienced faculty will share their insights into maximizing the benefits of each step at this essential program. With a special focus on strategic decision-making to minimize tax burdens, speed up the process and alleviate conflict; this guide to probate is just what you need to take your practice to the next level. Register today!

  • Spend two full days learning how to strategically navigate the probate process.
  • Shore up your knowledge with a tactical guide to probate inventory - and leave no stone unturned.
  • Get tips from the pros on how to tackle creditor claims and troubleshoot debt repayment.
  • Minimize tax burdens for both the decedent and the beneficiaries with a full guide to timely and prudent tax planning and reporting.
  • Maximize the use of exceptions when handling Medicaid estate recovery.
  • Hone your final disbursements skills to prevent disputes and re-openings.
  • Use probate litigation to its fullest advantage.

Who Should Attend

This two-day, intermediate level seminar is designed for:

  • Attorneys
  • Accountants/CPAs
  • Trust Officers/Administrators/Managers
  • Tax Professionals

Course Content

  1. Probate Process Overview and First Steps
  2. Executor Strategies
  3. Will Admission Techniques
  4. Inventory, Appraisement and Management Tactics
  5. Creditor Claims: Tips From the Pros
  6. Medicaid Estate Recovery Insights
  7. Insolvent Estate Tips and Tricks
  8. Tax Minimization Tactics
  9. Final Accounting Secrets
  10. Distributions: Insights From the Pros
  11. Estate Closing Strategies
  12. Legal Ethics
  13. Probate Litigation Tactics

Continuing Education Credit

Continuing Legal Education – CLE: 14.50 *

International Association for Continuing Education Training – IACET: 1.20

National Association of State Boards of Accountancy – CPE for Accountants/NASBA: 14.00 *

* denotes specialty credits

July 16, 2018 in Conferences & CLE, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, Intestate Succession, Professional Responsibility, Wills | Permalink | Comments (0)