In our last post, we began to look at the issue of joint representation in estate planning and a number of situations in which couples may want to think about securing their own attorney for estate planning purposes. As we noted, joint representation can be beneficial in many cases, but it will not work well for every couple.
Couples that do choose to do their estate planning together should consider the risks carefully, because the way they set up their plan can affect family relationships greatly, particularly in blended families and other complicated family situations. Two big risk factors are communication breakdown and inability to agree on a plan. Then there is just the fact that whenever two people try to agree on a plan, there can be insurmountable disagreements that make a common plan impossible.
Another thing our readers should be aware of is that joint representation can present the possibility of conflicts of interest, even if it doesn’t necessarily represent a conflict of interest in itself. Attorneys have special duties toward their clients, such as confidentiality and loyalty, and must be mindful of those duties.
An attorney who jointly represents a couple will need to be able to openly discuss the estate plan with both parties, and closely guarded secrets may not always be able to be kept hidden, depending on the goals of the parties. Every situation is different, but certain couples are simply better off securing separate attorneys.
Having one’s own attorney can afford one more freedom to speak about one’s concerns and desires, and one’s personal interests will be the focus of the attorney. These are some of the benefits of seeking separate representation.
Source: Forbes, “Estate Planning For Couples: Should It Be A Solo Or A Duet?,” L. Paul Hood, Jr., April 10, 2012.