With the lifting of most COVID-19 restrictions, California now starts on a path of “return to normal.” However, without a doubt, our “new” normal will not exactly match the old.
The pandemic proved the viability of the remote workforce for many industries, with VPNs, phone forwarding, and videoconferencing replacing the traditional office environment. For the estate planner, virtual client meetings became not just a business strategy but a survival necessity.
Post-COVID, such practices are likely to continue, not only for cost reduction but also to increase a geographical reach and allow client retention in an increasingly mobile world. And virtual meetings’ convenience for clients can’t be ignored.
Despite the benefits, virtual client meetings raise concerns about the estate planning practitioner’s ability to assess client capacity and undue influence. The “in-person” meeting gives the practitioner insight about the client through a number of non-verbal clues, such as physical appearance, body language, and the client’s interactions with family members or other “helpers.” Much of this is lost or obscured in a virtual meeting. The limited camera view and audio quality means a person might be lurking out of sight, either to eavesdrop or to provide cues or prompts.
So how can the estate planner adopt remote technology, maintain confidence in the capacity of the client, and avoid becoming an unwitting accomplice to nefarious deeds? And what exactly are the ethical obligations in the first place?
Estate planning for a client with diminished capacity becomes problematic due to the attorney’s obligations regarding client communications and competent representation. Although “. . .no controlling California statutory or judicial authority guides the attorney when a that client [with questionable capacity] wants to execute estate planning documents” (CEB’s California Estate Planning, § 2.34), the attorney has no duty to a beneficiary negatively affected due to the client’s execution of an estate plan while lacking capacity (Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287). And the law protects the attorney who refuses to draft documents requested by a client due to suspicion of lack of capacity or undue influence. (See, Chang v. Lederman (2009) 172 Cal.App.4th 67, disappointed prospective heir cannot sue an attorney declining to draft estate plan amendments allegedly desired by dying client.)
That said, it’s recommended that the practitioner take steps to ensure that the client holds capacity and isn’t acting under the undue influence of another (see CEB’s California Estate Planning, §§ 2.33-2.37), if for no other reason than to support an attorney’s declination of the work. (See San Diego Bar Association Ethics Opinion 1993-3: “If the lawyer is not satisfied that the client has sufficient capacity and is free of undue influence and fraud, no will should be prepared”; California State Bar ethics opinion 1989-112, attorney faced with a diminished capacity client limited to declining or withdrawing from representation, attorney may not ethically institute a conservatorship without client’s consent, potentially invalid due to lack of competency.)
Since no competent attorney wants to complete an estate plan for a client lacking capacity, most design office policies to avoid this. The question becomes what policies are appropriate in the digital world. Below are a few options for answering that question.
Retaining in-person meetings. An obvious solution is to retain in-person meetings, not necessarily using a traditional office. Modern “virtual office” space, providing office rentals by the hour, allows the practitioner to maintain in-person meetings, reduce office footprint, and expand geographic range. Old-fashioned “house calls” are also an alternative and allow the practitioner to view the client’s “natural setting.” However, practitioners should remain mindful of good hygiene practices and may wish to consider extra precautions when dealing with individuals with a higher risk of complications from a COVID-19 infection.
Additional virtual meetings. Traditionally, the estate planner meets with the average client twice: during the initial interview and at execution. Interim discussions generally occur by telephone or email. Using videoconferencing for interim discussions, such as reviewing and discussing the draft and final versions, provides additional opportunities to observe the client.
Expand the discussion with the client. As attorneys, we tend to focus on only the most relevant facts. However, engaging the client in side discussions about their likes, dislikes, hobbies, family relations and history, and other matters may provide signals about the client’s competence. One never knows when a discussion about a seemingly unrelated topic will result in important information.
Adopt videoconferencing policies. The practitioner can ask that the client conduct the conference in a separate room with the door closed, ask if any other parties are present, or even ask the client to move the camera around to take a look at the room.
Learn your videoconferencing platform. While the safeguard isn’t foolproof, most platforms allow the use of passwords to prevent unwanted parties from joining a videoconference. And keep an eye on the attendee list during the meeting, and look out for warning signs that it might be more than just you and the client (i.e., a client using both computer and phone audio, or a phone audio connection that’s not the client’s regular contact number.)
Detailed notes and recordings. Beyond information relevant to the estate plan, it might be worthwhile to note observations and other points of potential interest. The practitioner might also consider recording the conference session (with the client’s permission). However, such recordings have both advantages and disadvantages. See CEB’s Trust and Probate Litigation, §§ 2.16-2.17, 5.47.
Always involve both spouses or domestic partners. It’s not uncommon for only one spouse or partner to call the jointly retained attorney with suggestions or directions about the estate plan after a group meeting. As with traditional planning, the attorney should always either insist both spouses participate in the discussion or separately confirm the instructions with the other partner. (For more on ethical considerations in joint representation of couples, see CEB’s Drafting California Revocable Trusts, § 2.28 and Crossover Issues in Estate Planning and Family Law, chapter 3.)
Consider a doctor’s note. Some practitioners require all clients over a certain age to provide a physician’s letter attesting to the client’s capacity. (A universal requirement is thought to avoid any inference that the request resulted from the attorney’s concerns about a particular client.) This is easily adopted as a policy for planning conducted entirely by virtual meetings.
Detailed review with the client. The practitioner should rely on more than a simple, “Did you have any questions after reviewing the draft?” Engage the client in an in-depth discussion of how the plan operates, particularly of any unusual provisions (i.e. disproportionately benefiting one child at the expense of others, or granting the bulk of the estate to a charity and not the client’s children). Recite each “unusual” provision, describe the effect and potential for litigation, and ask for the client’s thoughts. This allows additional opportunities to ascertain the client’s state of mind. (An additional separate writing to the client confirming this information isn’t a bad idea either.)
A family meeting. “Most people will abide by the testator’s wishes if presented directly at a family meeting. The testator’s explanation of his or her desires and the method selected to implement those desires may be enough to induce acceptance. The explanation also provides direct evidence of capacity and freedom from undue influence.” (CEB’s California Trust and Probate Litigation, § 2.4.) Videoconferencing removes many of the difficulties in scheduling such a meeting.
© The Regents of the University of California, 2021. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.