Estate Planning

Standard of Care: Quick Analysis for Estate Planning Attorneys

By Administrator

Estate planning attorneys must always be cognizant of issues surrounding capacity and incapacity of their cilents when preparing and executing estate plans at their client's direction. Here are some recent thoughts about standard of care required by an estate planning attorney for review and consideration. It's also a good reminder to get your estate planning accomplished sooner than later. You never know what the future may hold for your own capacity. You may suffer from an illness, be in an accident or otherwise have dimished capacity that would prohibit you from executing your estate plan in accordance to your wishes.

To begin, an estate planning attorney is required to perform legal services with the same degree of skill and diligence that other members of the profession display when determining whether his or her client has capacity to execute estate planning documents.  Unfortunately, there is no bright line test to determine the mental capacity of a client.  

In California, the Probate Code establishes a rebuttable presumption that all persons have the capacity to make decisions and to be responsible for their acts and decisions. (See Cal. Prob. Code §810).   Thus, a person who has a mental or physical disorder may nevertheless be capable of executing a will or trust.  An attorney must look to Cal. Probate Code § 811 to determine whether a client has a mental deficit, which would result in a lack of capacity to execute a will, trust or other estate planning document.

Under the ABA Model Rules 1.14, (ABA is the American Bar Association), an attorney owes the client a duty to be reasonably alert to indications that the client is incompetent or is subject to undue influence, and where indicated, to make reasonable inquiry and reasonable determination in that regard.  If the attorney reasonably believes that the client cannot adequately act in his or her own interest, the lawyer may seek the appointment of a guardian or take other protective action.  The evaluation of the client's best interest is simply a matter of professional judgment on the lawyer's part.    California, however, does not have a statute or rule that corresponds to MR 1.14. Instead, California ethics opinions state that a lawyer must not petition the court to have a conservator appointed because it would violate the lawyer's duties of confidentiality and loyalty, thus violating the duty in Business and Professional Code §6068(e) to maintain the confidences and secrets of the client. 

California law does acknowledge that the degree to which a lawyer may use his or her judgment in making a decision on behalf of the client appears to depend on the degree of incapacity of the client, and on the specific legal context in which a decision is to be made.  Specifically, counsel has a duty to ensure that a client is competent to understand the nature of the proceedings and at times will have to assist in the client's defense despite the defense being at odds with the client's asserted interest.

For counsel to determine the client's testamentary capacity, they should evaluate the client at the exact time of the execution of the will. However, some authorities take the view that counsel should determine testamentary capacity when the instructions for the will were given.  If the client has testamentary capacity at the time of the instructions for the will, then the measure of capacity required at the time of execution may be altered.  An important way to determine the client's testamentary capacity is to know the condition of his or her mind a reasonable length of time before and after the execution of the will, because a client's mental state typically degrades slowly with the passing of time.

The capacity is lacking if the testator is not able to understand the nature of the testamentary act, understand and recollect the nature and situation of the individual's property, or remember and understand the individual's relations to living descendants, spouse and parents, and those whose interests are affected by the will. (See Cal. Prob. Code § 6100.5).  In addition, if the testator suffers from a mental disorder with symptoms, including delusions or hallucinations that result in the testator's devising property in a way that he or she would not have done, there is no testamentary capacity. (See Cal. Prob. Code § 6100.5).

Finally, the attorney should also be aware of third parties.  It is not unusual for a third party, usually a sibling or an adult child of the client, to bring the client in and also to have spoken to the attorney prior to the attorney meeting the client.  In this situation, the task for the attorney is to judge the mental capacity of the client independent of the opinions of others.  The attorney should also discuss the intentions of the client alone without the presence of the third party.  Even when the client insists on the presence of another individual during meetings, the attorney should insist on frequent, periodic meeting time alone with the client to verify that what is transpiring is the dependent intention of the client, and not the substituted desires of others. The client must be able to provide independent thought as to testamentary intentions. 

Of course, this is only a synopsis of the standard of care to be exercised by estate planning attorneys and only applies to California and should be supplemented with case law research and analysis. At no time, does this blog post on this issue be construted as legal advice or applicable to your situation, whatever it may be. It is being posted to provide an exploration of the standard of care for estate planning attorneys. 

Full post as published by Estate Planning Practice Blog on June 01, 2009 (boomark / email).