One of the most common questions I receive is whether an adult child, sibling, friend or other trusted person may attend an estate planning meeting or pay for a loved one’s estate plan. The answer is yes, but only with appropriate safeguards.
Under California law, an estate planning attorney’s duty of loyalty and confidentiality belongs solely to the client. Whether preparing a revocable living trust, will, durable power of attorney or advance healthcare directive, the attorney must ensure that the estate plan reflects the client’s wishes, not those of a family member or the person paying the legal fees.
Many clients appreciate having a trusted person attend meetings. An adult child may help organize financial information, a spouse may participate in family discussions or a friend may simply provide emotional support. There is nothing improper about another person being present if the client requests it.
However, attorneys must also guard against undue influence. California law recognizes that older or vulnerable adults may be susceptible to pressure from others. For that reason, an attorney has an ethical obligation to determine that the client understands the documents, has the legal capacity to make decisions and is acting voluntarily.
It is therefore common practice for the attorney to meet privately with the client during at least part of the consultation. This allows the attorney to ask confidential questions, assess capacity, discuss sensitive issues and confirm that the client’s decisions are truly their own. If concerns arise, the attorney may recommend additional evaluation before proceeding.
Third-party payment is also common. Adult children often pay for a parent’s estate plan as a gift or to ensure proper planning is completed. California permits this arrangement, but paying the legal fee does not create an attorney-client relationship.
The person paying the bill does not become the client, is not entitled to confidential information, cannot direct the attorney’s advice and cannot decide how the estate plan will be drafted. Those decisions always belong to the client.
To protect everyone involved, California attorneys typically require written waivers, informed consents, confidentiality acknowledgments and third-party payment agreements before allowing a non-client to participate in meetings or pay legal fees. These documents are prepared in accordance with California law and the California Rules of Professional Conduct. They confirm that the attorney represents only the client, that confidential communications belong to the client unless expressly authorized otherwise and that the client remains free to make all legal decisions independently. They also make clear that the third-party payor has no authority to influence the representation simply because they are paying the fee.
These safeguards are far more than administrative formalities. They protect the client’s independence, preserve the attorney-client relationship and reduce the likelihood of future family disputes or claims of undue influence.
Family involvement can be extremely beneficial during the estate planning process and many clients welcome the support of loved ones. At the same time, California attorneys have a professional obligation to ensure that every estate plan reflects the client’s own intentions. By following the required ethical rules and using the appropriate waivers and agreements, attorneys can involve family members when appropriate while protecting the integrity of the client’s estate plan.
Send your questions to ccolan@colanlegal.com and use “Alpine Mountaineer estate planning question” as the subject. We’ll answer your questions in our upcoming issues. This article is provided by your local estate planning attorney, Corina Colan. The Law Office of Corina I. Colan / (909) 265-3315 / www.colanlegal.com
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