by Christine Wakeman
“Mom has Alzheimer’s. I know you prepared her will and power of attorney. Can you send them to me?” According to the Alzheimer's Association, 10 percent of people age 65 and older have Alzheimer’s dementia. Estate planners should anticipate this type of conversation and have a plan.
When a client’s incapacity is alleged, a lawyer should attempt to independently determine if he or she believes the client is incapacitated instead of taking a third party’s word for it. The comments to Rule 1.03 of the Texas Disciplinary Rules of Professional Conduct (collectively the “Rules” or individually a “Rule”) explain that a lawyer should seek to maintain reasonable communications with a client under a disability, insofar as possible.
Assuming a lawyer determines that a client lacks capacity, Rule 1.05(b) prohibits the lawyer from revealing any information relating to the client to anyone other than the client, the client's representatives, or the members, associates, or employees of the lawyer’s law firm. Rule 1.05(c) provides an exception to the general rule when a client expressly authorizes the lawyer to reveal confidential information in order to carry out the representation.
At first blush, a client's named fiduciaries or agents may seem to qualify as a client's “representatives,” which might make a lawyer's disclosure of core estate planning documents to those named persons permissible under Rule 1.05(b). However, a person listed in a client's will or power of attorney may not be a client's intended “representative.” For example, a client might revoke his will or power of attorney without his lawyer's knowledge. Thus, a lawyer may not know whether a document he or she possesses contains an incapacitated client's most recent designation of his or her “representatives.”
Therefore, it is prudent to address the possibility of incapacity with clients before capacity issues arise. Develop a policy regarding disclosure of copies of clients' core estate planning documents. A sample policy might read, “You expressly consent to Firm's disclosure of a copy of your will, power of attorney, HIPAA Authorization, Directive to Physicians and Family or Surrogates, and/or Declaration of Guardian to individuals you have named in those documents to serve as your fiduciaries and/or agent(s) upon their request to Firm. You may revoke this consent at any time by providing Firm written notice.”
Present the policy to clients when they sign their core estate planning documents, and allow them to opt into or opt out of your policy. Memorialize the client's election to opt in or opt out of your document disclosure policy in your client's closing letter, so that you have a written record of the client's decision.
Do different rules apply regarding disclosure of clients' wills? The answer may depend on whether the client is alive or deceased. Opinion 55, issued by the Professional Ethics Committee of the Supreme Court of Texas, dealt with disclosure of a will of an incapacitated person. The committee considered whether a lawyer who drafted a client's will prior to the client's incapacity could be compelled to disclose the client's will to the client's son and guardian. In an 8-1 decision, the committee opined that the lawyer could not release the will to the third parties. The committee reasoned that nondisclosure was the prerogative of the client during his lifetime and could only be waived by the client.
If a client is deceased, the persons to whom a lawyer may release a client's will is somewhat unclear. The Texas Estates Code (the “Code”) contains two conflicting sections on the subject. Code section 252.201(a) states, “On receiving notice of a testator's death, the person who has custody of the testator's will shall deliver the will to the clerk of the court that has jurisdiction of the testator's death.” This rule implies that the only person to whom a lawyer (or any other person) could release a will is the clerk of a court of competent probate jurisdiction. However, in contrast, Code section 151.004(a)(1)(B) permits a person in possession of a decedent's will to turn over the will to the clerk of the court that has jurisdiction of the testator's death or a person named in the will as an executor if the named individual (1) requests delivery of the document and (2) issues receipt of the document to the person delivering the document. While arguably there is a legally sanctioned process for releasing an original will to an executor under Code section 151.004(a)(1)(B), it may be most prudent for lawyers to opt not to retain clients' original wills. Instead, consider returning the original will to the client with clear instructions to maintain the will in a safe place that could be accessed by their executor in the event of the client's death.
An ounce of prevention is worth a pound of cure. Lawyers should develop a plan to address disclosure of clients' core estate planning documents that will help them sidestep ethical dilemmas in the event of a client's incapacity or death.
Christine Wakeman is an associate at Winstead. She can be reached at firstname.lastname@example.org.