Ethics is a system of moral principles that governs a person’s behavior or the conduct of their actions. Ethics guides you with respect to what actions are right or wrong. Fundamental principles of ethics include honesty, compassion, loyalty, respect for the rights of others, and a view to the common good.
In estate planning, ethical issues can be easily dismissed unless you are working with an estate planning professional. There are five ethical considerations that should always be top of mind when developing an estate plan.
Competence
Competence of the professional is the first consideration. Any attorney contributing to or guiding the development of an estate plan must have the knowledge and skill to provide legal advice on the subject of estate planning. Estate Planning Attorneys have an obligation to maintain their knowledge and stay informed of laws effecting estate planning.
Conflicts of Interest
An estate planning attorney must also be alert to any conflicts of interest. The most common conflict of interest may be representation of both spouses in a married couple. Another concern is intergenerational representation of a child or grandchild. Intergenerational issues can also arise when an adult child brings an elderly parent to complete an estate plan. The attorney must be diligent that s/he is following the wishes of the client, not the suggestions of their child. Avoidance of conflicts of interest will guarantee that the attorney is making suggestions in the best interest of their unique client. Joint representation is possible with the informed consent of both parties.
Testamentary Capacity
It is important to confirm that the client is of full testamentary capacity. Estate planning attorneys may be faced with clients who have a limited mental capacity. In this case, the attorney has an obligation to ascertain that the person they are representing has the required mental abilities to complete the documents that are shared with them. This situation can be quite the challenge if the estate plan is of controversial nature. For example, there may be multiple people jockeying for a position of power, and claiming lack of mental capacity of the client. This can pose a significant challenge for the estate planning attorney.
Diligence
Due diligence is a priority in estate planning. An estate planning attorney has an obligation to act in a timely manner while representing a client. An attorney should follow through and carry forth all of the clients requests if they are ethical and law-abiding in nature.
Continued Obligation
Continued obligation is the final ethical consideration for estate planning attorneys. This is the simple act of keeping clients informed. If an active engagement is occurring, continued obligation comes naturally in a client/attorney relationship. If the representation become dormant, this is when open lines of communication can be of concern.
The five ethical considerations of competence, conflicts of interest, testamentary capacity, diligence, and continued obligation are extremely important in all estate planning endeavors. Ethical planning and decision making cannot be dismissed. By working with an experienced estate planning attorney, you can rest assured that all considerations are made in your best interest.
