In the current COVID-19 environment, the practice of law is changing daily & rapidly so.
Wills, estates, trusts, and, elder law lawyers may find themselves currently consulting with their clients more often by some form of video conference.
Lawyers may be virtually meeting with their clients to obtain instructions for the drafting of testamentary instruments, and for power of attorney documents, or for litigation instructions and consultations. Just how we are meeting our clients, whether by electronic means of whatever categorization or otherwise, may well be in transition, yet, what will remain static are our professional responsibilities and duties as lawyers.
Professionals must continue to be vigilant and assess whether potential clients/clients possess the requisite decisional capacity to provide instructions and too, that those instructions are free of undue influence - where one person has the ability to dominate the will of another, whether through manipulation, coercion, or the outright, yet, subtle abuse of power.
Undue influence may be difficult to detect in a usual face-to-face client meeting. Detecting such influences through video conferencing may be even more challenging. It is therefore important to adapt to current norms and develop processes and steps to help determine if undue influence is at play in all situations.
Below we have modified our “Undue Influence Checklist” for use during virtual/digital meetings or video conference calls with clients or potential clients.
QUESTIONS TO ASK YOURSELF OR YOUR CLIENT DURING VIRTUAL/DIGITAL MEETINGS
- Is there an individual or individuals who are with your client in the same room during the video conference? Try to interview the client alone. Explain the importance.
- Determine what technology the potential client/client is making use of ie., laptop, desktop, monitor, mobile device.
- Ask if able to do so that the potential client/client do a 360 view of the room that he/she is participating in the meeting from.
- Request that the potential client/client not mute the meeting for the duration.
- Request that any doors if applicable be closed during the meeting.
- Observe body language closely.
- Listen for rustling of papers, or other distractions and make inquiries if any.
- If someone insists on being present in the room, establish who they are- And why are they there?
- What is the relationship between this individual and your client?
- Who is your client living with during the pandemic?
- Analyse the room in which your client is taking the video call. Does it look disorganized? Observe for cleanliness and disarray. How is your client dressed? Does it raise any red flags about personal care?
- Is your client looking at the camera or looking off camera for answers? Is someone writing down and holding up written answers for your client to read? Try to make sure your client is the one answering the questions and if on video, that you see all of the person as much as possible.
- Does your client have any documents in front of him or her? What do those documents say? Who wrote the documents? Ask direct and pointed questions.
- Consider using the record function for the video call and establish this protocol from the outset of the meeting.
- Are there any communication issues that need to be addressed? Can the client hear and see you clearly through the video conference service and can you hear and see them? Test this through questioning.
- Are there any language barriers that could limit the client’s ability to understand and appreciate the documents being considered, drafted, or otherwise as applicable and related implications?
- Who set up the video call? Is the client technologically savvy, or did someone else set up the call or consultation? Who? Why?
- Is the client aware that he or she is paying for the consultation, or that the consultation is being paid for with his or her assets?
- What are the familial circumstances of your client? Is she or he well supported? More supported by one family member? If so, is there a relationship of dependency between the client and this person?
- Is there conflict within your client’s family?
- If the client does not have familial support, does he/she benefit from some other support network, or is the client isolated?
- Observe any vulnerabilities.
- Is the client independent with respect to personal care and finances, or does he/she rely on one particular individual, or a number of individuals, in that respect? Is there any connection between such individual(s) and the legal matter in respect of which your client is seeking your assistance?
- Based on conversations with your client, his/her family members or friends, what are his/her character traits?
- Has the client made any gifts? If so, in what amount, to whom, and establish the timing of any such gifts? What is the history of gifting, if any?
- Have there been any recent changes to any planning document(s) in question? What was the timing of such change and what was the reason for the change? For instance, did any change coincide with a shift in life circumstances, situations of conflict, or medical illnesses, physical disabilities?
- Are there significant changes being made because of the pandemic? Why are they being made now? Fraudsters and undue influencers may take advantage of the current crisis to prey on the vulnerable. Vigilance is key.
- If there have been recent changes in planning documents, it is prudent to inquire as to the circumstances under which previous planning documents came to be; whether independent legal advice was sought; whether the client was alone with his/her lawyer while providing instructions; who were the witnesses to the document, and; why those particular witnesses were chosen.
- Have numerous successive planning documents of a similar nature been made by this client in the past? What is the timeline?
- Have different lawyers been involved in drafting planning documents? If so, why has the client gone back and forth between different lawyers? If so, why?
- Has the client had any recent significant medical events? Does the client have a physical impairment of sight, hearing, mobility or other? Establish timelines.
- Is the client physically dependent on another? Is the client vulnerable?
- In the case of a power of attorney or continuing power of attorney for property, what is the attitude of the potential grantee with respect to the grantor and his/her property? Does the grantee appear to be controlling, or to have a genuine interest in implementing the grantor’s intentions?
- Overall, do the client’s opinions tend to vary? Have the client’s intentions been clear from the beginning of the retainer? Have instructions remained the same? Do the instructions seem reasonable?
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