Attorneys who work with clients over the age of 65 should understand the Oregon statute on elder financial abuse (ORS 124.100, et seq.) and take steps to lessen their risk of unwanted litigation.
The statute states that a person who “wrongfully takes or appropriates money or property of a vulnerable person” is liable for treble damages, plus attorney fees and includes those who “have caused” the elder financial abuse or who have “permitted another person to engage” in elder financial abuse.
Because the statute is broadly written, its wording makes it possible for plaintiffs to sue attorneys who have allegedly engaged or assisted in inappropriate estate planning. An example might be, an attorney who aids a caregiver in receiving gifts from the client or who helps a client make gifts to the caregiver, which is then contested by a family member.
Even if the lawsuit is unsuccessful, the cost of defense can be substantial.
Any attorney would hope that preparing a will for a client who appears to be competent and free from undue influence would not subject them to liability for elder financial abuse, but the courts have not proven otherwise under this law.
The advice of the Oregon State Bar is to proceed with caution and consider the following to minimize risk:
Carefully document your interaction. Take notes every time you meet to document your exchange, and save all letters and emails. An estate plan that carefully documents your client’s intentions will be hard to contest. Ask the testator if he or she has discussed the estate plan with anyone and to describe those conversations, explaining that the more information you have, the stronger the will.
Cover four topics when you meet and at the execution of the document; the testator should:
- Know the natural objects of his/her bounty and be able to provide the names and relationships of family members without prompting.
- Know the general nature and extent of his/her property.
- Understand the nature of the act being performed – signing a will or trust – and that the document disposes of their assets upon death.
- Know and, in general, be able to describe the scope and contents of the will or trust.
Recognize the seven factors that indicate the possible presence of undo influence:
- Procurement: If possible, meet with your client alone and have them arrange independent transportation to your office – drive themselves or take public transportation, rather than have a family member drive them.
- Lack of independent advice: Avoid conflicts of interest or the appearance of conflicts. For example, if you have represented one of the beneficiaries, refer the testator to a different law firm.
- Secrecy and haste: If your client is trying to keep the estate plan secret from other family members, the plan will be harder to defend, especially if the secrecy is sought by and influencing beneficiary.
- Change in attitude following close association with a new beneficiary: An example would be a new caregiver or romantic interest who suddenly joins the picture, to the exclusion of or resulting in the reduction of shares to other beneficiaries.
- Change in dispositive plan: A client with a history of treating children fairly who suddenly favors or disfavors specific children should be questioned.
- Unnatural or unjust bequest: An example would be client who bequeath his/her estate to a caregiver or other distant persons.
- Susceptibility to influence: An ill or elderly testator who is dependent on others to provide care is more susceptible to influence.
Other tips include:
- Meeting privately with the client at your initial meeting and including high-quality witnesses at subsequent meetings.
- Using high-quality witnesses, such as two drafting attorneys.
- Having your witnesses take notes and prepare memos to record their discussions with the client.
- Asking your client to prepare a letter or memorandum explaining his/her wishes.
- Sending an explanatory letter with your draft document that explains any unusual provisions that might motivate a contest.
- Preserving copies of prior wills and trusts.
- Drawing a family tree.
- Including a no-contest clause.
- Obtaining a physician’s opinion following an examination of the client.