Topic: Aging Parents

ESTATE PLANNING FOR AN AGING MOM AND/OR DAD

By Milton Babirak, JD, LLM      |      Babirak Carr, PC     |     Sterling, VA

Introduction

Adult children are frequently concerned when one or both of their aging parents do not have an estate plan. That concern is natural and prudent. The whole family may benefit from good estate planning. Without proper estate planning, the surviving adult children may be left with a mess that is much harder and more expensive to straighten out. So, it is quite common for adult children to contact an estate planning lawyer on behalf of their parents. What could go wrong?

 

Capacity

The aging parent must have the requisite legal capacity to execute an estate plan. There is a different standard for wills and trusts than the standard for durable powers of attorney and other estate planning documents. These standards are the subject of one of my previous articles in this newsletter. If the parent cannot meet the standard(s), there still may be hope if the parent has a durable power of attorney specifically authorizing the parent’s agent to revise the parent’s will and/or trust and/or other documents.

 

Undue Influence

An adult child of a parent cannot exert undue influence on the aging parent to make or change a will or trust. It has to be the parent’s free and voluntary act. To assess whether a parent is acting of their own accord, an estate planning lawyer may require that the adult children not be present at the meetings between the parent and lawyer. In the case of parents who cannot drive a car, an adult child can drive the parents to the office but have to wait in the reception area.

 

Attorney-Client Communications and Confidentiality

There may be good reasons why an adult child wants to be present at a meeting between the parent and the lawyer: the parent’s memory may not be good; or the parent may have mobility issues or hearing impairment. However, even in the case of these good reasons and where there is no undue influence, adult children may not be able to attend such a meeting. If an adult child is present at such a meeting, there is a breach of the attorney’s duty to keep the client’s information confidential and the presence of a third party waives the attorney-client privilege. The lawyer has an affirmative duty to protect confidentiality and the privilege.

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