Brooke Astor and Attorneys Who Overreach
Philip M. Bernstein at the New York Probate & Estate Litigation Blog has an interesting post (here) about socialite Brooke Astor and her attorney, Francis Morrissey. According to Mr. Bernstein, Mr. Morrissey "is evidently no stranger to controversy concerning the elderly persons and the estates which he has represented. He has been named as a beneficiary on several occasions and has inherited such valuable goodies as Manhattan apartments and valuable works of art including at least one Renoir and a Diego Rivera drawing as well as substantial sums of cash. Claims of undue influence have been leveled against Morrissey in more than one instance."
Yikes! In my opinion, an attorney should never draft estate planning documents with himself as a beneficiary unless (A) it's for a close family member (like a parent) and (B) the attorney is receiving the same amount as other members of his class. For instance, if the attorney has one sibling, it might be appropriate for the attorney to draft his father's Will if the Will leaves 1/2 to the attorney and 1/2 to the sibling. (It wouldn't be appropriate for the attorney to be the draftsperson if the father wanted to disinherit the sibling and leave everything to the attorney.)
Mr. Bernstein goes on to state the following as a solution to overreaching attorneys:
... I cannot stress enough the need for vigilance . Be involved in the financial affairs of your loved ones. Even if your aunt Matilda is tempted to make her attorney or financial advisor a beneficiary, you can stop this if you are the one who takes her to her appointments and reviews the materials she is given with her. Don't be afraid to suggest that she goes for a second opinion. After all, she understands that she should see more than one doctor for a medical problem.
Review the paperwork. Ask for explanations and copies of records. Those of us who try to to a good job for our clients understand the need to be accountable and will not be offended by those who ask for details.
Unfortunately, I don't think it's that simple. A lot of my older clients have "help" from a friend or family member. Maybe the helper calls and sets up the appointment. Maybe the helper actually wants to attend the appointment. Sometimes the helper tries to suggest changes to the client's estate plan. All of this may be appropriate or inappropriate, depending on context. I've had situations where I felt it was necessary and positive for the helper to be involved -- the client wanted it, and I saw no overreaching by the helper. I've also had situations where the helper acted in an extremely inappropriate, self-serving manner, and was clearly trying to exert undue influence on the client. There's no bright-line rule here, but I can think of a number of cases where I have chosen not to be accountable just because they say they are trying to help my client.
