Wednesday, January 16, 2019

Can a Client's Family Member Demand info About the Estate Plan?


The niece of one of my elderly clients called me recently to ask about her aunt’s account. She was concerned that her aunt’s caretaker was stealing money from her. Unfortunately, since she wasn’t listed as someone I could give information to I had to decline. She went on a tirade and made a huge stink about it…Was there anything I could have done differently to have avoided the confrontation with the niece?  (This question was posed by a financial advisor in the Financial Planning Magazine Dec. 2018 issue.)

Financial advisors are in a position of trust, and are expected to keep all information about their clients confidential.  But, just last year, a new Financial Industry Regulatory Authority rule went into effect, designed to protect seniors against fraud and exploitation. The rule basically has two parts:

1. When a client opens an account, (or when financial advisors are updating an account), the advisors are required to make reasonable efforts to obtain the name of and contact information for a trusted contact person. If the advisor suspects either that there is mental decline in the account owner, or that fraud is taking place, the advisor can get in touch with that contact person.

2. FINRA members are permitted to place temporary holds on disbursements of funds or securities if they believe exploitation or fraud is taking place.

As elder law attorneys at Rebecca W. Geyer & Associates, we are also in a position of trust with our clients.  “In fact, the most basic principle underlying the lawyer-client relationship is that lawyer-client communications are privileged, or confidential”, the Legal Encyclopedia explains. This means that lawyers cannot reveal clients’ oral or written statements (nor lawyers’ own statements to clients) to anyone, including prosecutors, employers, friends, or family members, without their clients’ consent”.

Specifically, our rule is called Rule 1.6: Confidentiality of Information, and it is part of Indiana’s Rules of Professional Conduct: In the absence of the client's informed consent, the lawyer must not reveal information relating to the representation. Paragraph (a) of that rule requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties.

Elder Law involves planning for the complex health, long-term care, and other issues faced by elderly and disabled individuals and their families. With advocacy for families through estate planning and elder law representing my own career mission, I am particularly dedicated to protecting seniors against fraud and exploitation, while preserving the confidentiality of information given to me in trust.

 - by Geyer Law associate Jennifer Hammond

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