Etiquette for calling your parents Estate Planning Attorney

Etiquette for calling your parents Estate Planning Attorney

John and Mary have hired an attorney who has helped them create and fund a revocable living trust. John and Mary have two adult children Sam and Jim. Sam is the successor trustee in the event that both John and Mary die, resign or become incapacitated. Sam or Jim may some day want to call the attorney either because they are curious about what their parents did or because one or both of their parents are now in ill health. The problem is that the attorney cannot reveal information to either of them. The attorney has a duty of confidentiality and a duty of loyalty to John and Mary because they (and not Sam or Jim) are his clients. John and Mary could contact their attorney and authorize him to speak with Sam or Jim. But if Sam or Jim call the attorney and merely say “my parents told me to call you”, the attorney cannot accept that as authorization from his clients. Further, that type of phone call can only make the attorney suspicious about the possibility that the caller is trying to take advantage of John and/or Mary. If John and Mary have truly become incapacitated, then the attorney can explore with Sam who is the successor trustee (but not with Jim who is not the successor trustee) the mechanism in the trust for trustee succession. For example, many trusts say that incapacity is proven by two letters from doctors of the trust Creators. Typically, there is a health care power of attorney, and the agent (the person designated in the power to make health care decisions) can contact the doctors to try to get the necessary letters. Once the attorney is satisfied that the procedure for trustee succession prescribed in the trust has been satisfied, he can begin working with the successor trustee. In many cases, the successor trustee only wishes to become trustee to begin helping his parents because they lack the capacity to help themselves. In other cases, children may call their parents estate planning attorney because they want to convince that attorney to prepare an amendment to the trust by which that particular child (the one calling) gets a larger gift. The attorney, in addition to the concerns discussed above,will also be worried that this child may be unduly influencing his parents. The child who is calling has created a bad impression. Children who learn that their parents want to amend their trust should encourage the parents to contact their attorney directly. Children who fear that their parents are becoming incapacitated should encourage the parents to contact their attorney to discuss the advisability of resigning as trustee. Children who believe that their paraents are already incapacitated and who also are the persons who would become trustee in the event of their parents incapacity can contact their parents attorney to learn the procedure in the trust that will prove that trustee succession has taken place.


About randyspiro

I am a super lawyer in California with dual specialization in Estate Planning and Taxation.
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