We all get calls from potential clients wanting something as “simple” as a durable power of attorney or a basic will. Unfortunately, many times the procedure for drafting and completing those documents is anything but “simple.” There are complex legal and ethical issues pertaining to undue influence and capacity that are easily missed. These issues are particularly difficult in wealth management planning. Failing to pay close attention can lead to avoidable disasters. Whether in wealth management planning or the drafting of other related documents, by following basic guideposts, one can ensure the execution of a client/loved one’s wishes and stop the creation of unnecessary litigation in the future.
If the call you are getting is outside of your usual area of expertise, recognize that ethical issues pertaining to estate planning are strikingly complex. They seem simple—until there is a problem. Once you realize there is a problem, it’s likely too late for a simple fix. Before you have an issue, call practitioners who specialize in elder law, guardianship, probate, wealth planning, and/or estate planning. The longer you wait to deal with issues, the more difficult they are to resolve. For example, once family members are involved with planning, it is nearly impossible to remove the specter of undue influence. Cases which have allegations of undue influence or incapacity are common to those who practice in these areas. No matter how bizarre the fact pattern is to you, those who are involved with these cases every day have heard similar stories. There is no fee worth a claim of malpractice, being called as a witness, or having your reputation tarnished by disgruntled family members.
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