HOW TO AVOID LEGAL MALPRACTICE IN ESTATE PLANNING

Who is the client?

Although it sounds simple, there can be issues in regard to who is the client depending on the initial contact made, who engaged the attorney and what is being requested of the attorney.

Contacts with the client.

If the client comes to the attorneys' office, there may not be an issue. If someone is acting on behalf of the client, and the client is not part of the initial meeting with the attorney, then the attorney needs to engage the client, including by meeting with the client and/or appropriate correspondence with the client.

What are the wishes of the client and what are the recommendations of the attorney?

The attorney needs to be careful to understand what the client is seeking, that the attorney have appropriate background and historical information, that the attorney understands what the client is saying and that the attorney is capable of following the instructions of the client, so long as the attorney understands those instructions. The attorney may be in a position to make recommendations to facilitate the instructions of the client. In other words, the client may be asking for certain matters but the attorney may have a better way of accomplishing the goals of the client, and those recommendations should be made.

Confirmation of the client's instructions in writing and drafts of estate planing documents.

The attorney should confirm in writing to the client what the attorney believes the client has requested and the attorney should provide drafts of the estate planning documents, not in final form ready for signature, but for discussion purposes, so that the client has an opportunity to review the engagement letter and to review rough drafts of estate planning documents, to gain a level of understanding of what the attorney is doing, why the attorney has drafted documents in a certain manner and whether or not the initial engagement letter and drafts of documents are consistent with the wishes, understanding and instructions of the client.

Edits to drafts of estate planning documents.

The attorney and the client should review drafts of estate planning documents together. It should not be a matter of someone other than the client dropping off changes to the attorney indicating that the changes reflect what the client is seeking. It is the responsibility of the attorney to make sure it is the client, and not someone on his or her behalf, that is requesting changes to drafts of Estate Planning Documents.

Final review of estate planning documents before signature.

The attorney should review final drafts of estate planning documents with the client before signature. Not all paragraphs of estate planning documents may equally weighted in terms of importance to client or relevancy in regard to the engagement. In general, the dispositive provisions are key. Those provisions should follow the wishes and instructions of the client but they have to be drafted in a manner that carries out the wishes and intentions of the client, which involves the professional judgement of the attorney, after explanation to the client. Other provisions of the estate planning documents are also important, including identifying key persons, issues involving management, death and succession considerations and other important matters.

After estate planning documents have been executed.

After estate planning documents have been executed, the client should receive at least the originals and one (1) copy of each with the attorney retaining one (1) signed copy of each. There should also be correspondence to the client confirming this has occurred and the attorney should indicate to the client that the client should contact the attorney if any further changes are being requested.

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