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LOOK BEFORE YOU LEAP! Planning at The CliffOf The Client’s CapacityLOOK BEFORE YOU LEAP! Planning at The CliffOf The Client’s Capacity

Marve Ann M. Alaimo / Cummings & Lockwood LLCMarve Ann M. Alaimo / Cummings & Lockwood LLC

William T. Hennessey / GunsterWilliam T. Hennessey / Gunster

The Doe Familyonce upon a time …The Doe Familyonce upon a time …

OverviewOverview

Understanding clientcapacityUnderstanding clientcapacity

Recognizing anddealing with thepotential for undueinfluenceRecognizing anddealing with thepotential for undueinfluence

Identification of theclientIdentification of theclient

Sound MindWhat is it?Sound MindWhat is it?

•The ability tounderstand the natureand extent of one’sproperty•The ability tounderstand the natureand extent of one’sproperty

•Knowledge of one’snatural beneficiaries•Knowledge of one’snatural beneficiaries

•A generalunderstanding of thepractical effect of awill or trust•A generalunderstanding of thepractical effect of awill or trust

Know Your ClientSet the environmentKnow Your ClientSet the environment

Be alertBe alert

Check the timeCheck the time

Be casualBe casual

SimplifySimplify

Be creativeBe creative

Be visualBe visual

Ethical Concerns

To Prepare or not to prepare?

•ACTEC Commentary to MRPC 1.14

lack of capacity vs. borderline capacity

•San Diego County Ethics Opinion 1990-3

once raised, an issue of capacity must be resolved

•Florida Bar v. Betts and Vignes v. Weiskopf

coercion v. diligence

Ethical ConcersThe take away …Ethical ConcersThe take away …

•Facilitate client wishes asbest as possible, but don’tinterpose your own•Facilitate client wishes asbest as possible, but don’tinterpose your own

•Be honest•Be honest

•Provide facts and a clearrecord•Provide facts and a clearrecord

•Let the Court make thedecision•Let the Court make thedecision

Confirm IntentionsConfirm Intentions

Get written instructions ifyou canGet written instructions ifyou can

Follow up with meetingsummariesFollow up with meetingsummaries

Document significantdetours in planningDocument significantdetours in planning

Simplify for understandingSimplify for understanding

Be visual & straightforwardBe visual & straightforward

To do …To do …

•Take notes and preparememoranda•Take notes and preparememoranda

•Focus on the test for capacity•Focus on the test for capacity

•Include witnesses•Include witnesses

-Who?-Who?

-When?-When?

-How?-How?

Or Not To Do …Or Not To Do …

•Audio or videorecordings?

•Medical records orphysician reports?

•Independentevaluations?

•Letter of intentions?

Undue InfluenceUndue Influence

“When the influence exerted upon atestator or grantor rises to the levelof over persuasion, duress, force orcoercion and destroys the freeagency and will power of the testatoror grantor, undue influence exists”“When the influence exerted upon atestator or grantor rises to the levelof over persuasion, duress, force orcoercion and destroys the freeagency and will power of the testatoror grantor, undue influence exists”

Undue Influence?Undue Influence?

A will or trust is presumed tobe the product of undueinfluence if the alleged undueinfluencer:A will or trust is presumed tobe the product of undueinfluence if the alleged undueinfluencer:

is a substantial beneficiaryunder the will or trustis a substantial beneficiaryunder the will or trust

occupied a confidentialrelationship to the testatoror grantor, andoccupied a confidentialrelationship to the testatoror grantor, and

was active in procuring thewill or trustwas active in procuring thewill or trust

What do you do when …What do you do when …

•The client’s appointmentis made by a potentialbeneficiary•The client’s appointmentis made by a potentialbeneficiary

•A potential beneficiarywants to talk with youabout a client’s estateplan•A potential beneficiarywants to talk with youabout a client’s estateplan

•A potential beneficiarywants to be a part of theclient meetings•A potential beneficiarywants to be a part of theclient meetings

Ask Yourself …Ask Yourself …

Will this person benefitsubstantially from the planmy client wants to create?Will this person benefitsubstantially from the planmy client wants to create?

Does this person have aspecial relationship withmy client in which myclient is dependent uponthis person or must place alot of trust in that person?Does this person have aspecial relationship withmy client in which myclient is dependent uponthis person or must place alot of trust in that person?

Is this person taking anactive role in procuringthis change to my client’sestate plan?Is this person taking anactive role in procuringthis change to my client’sestate plan?

ActiveProcurement ActiveProcurement

•Presence of the beneficiary at theexecution•Presence of the beneficiary at theexecution

•Presence of the beneficiary at clientmeetings•Presence of the beneficiary at clientmeetings

•Referral of the client to you by thebeneficiary•Referral of the client to you by thebeneficiary

•The beneficiary’s knowledge of theproposed plan before it is executed•The beneficiary’s knowledge of theproposed plan before it is executed

•Instructions given by thebeneficiary to the attorney•Instructions given by thebeneficiary to the attorney

•Securing of witnesses by thebeneficiary•Securing of witnesses by thebeneficiary

•Safekeeping of the documents bythe beneficiary•Safekeeping of the documents bythe beneficiary

Say NO to ActiveProcurement!Say NO to ActiveProcurement!

•Schedule and confirmmeetings with the client•Schedule and confirmmeetings with the client

•Keep potential beneficiariesout and explain why•Keep potential beneficiariesout and explain why

•Document the third partiesthat do participate•Document the third partiesthat do participate

•Reaffirm confidentiality,freedom of choice and theirright to advocacy•Reaffirm confidentiality,freedom of choice and theirright to advocacy

•Receive and confirm alldirections from and with theclient•Receive and confirm alldirections from and with theclient

•Document everything withmemos and notes•Document everything withmemos and notes

•Be honest with your client•Be honest with your client

Ethical IssuesEthical Issues

What duty to you have toscrub the undueinfluence?What duty to you have toscrub the undueinfluence?

What if you still feel yourclient is being undulyinfluenced?What if you still feel yourclient is being undulyinfluenced?

Best PracticesBest Practices

Communicate directly with the clientCommunicate directly with the client

Get written instructions in client’s handGet written instructions in client’s hand

Follow up with meeting summariesFollow up with meeting summaries

Document significant detours in planningDocument significant detours in planning

Reaffirm, reaffirm, reaffirm!Reaffirm, reaffirm, reaffirm!