Friends or family members often want to assist their loved-ones in instructing solicitors and other legal professionals, but this is not always practical or in the best interests of the person making the legal document. Family might often think, "why am I left in the waiting room?"
Many of the enquiries that lawyers receive often come from relatives on behalf of their elderly or vulnerable family members. Writing a Will or creating Lasting Powers of Attorney can sometimes be a daunting task, so many families wish to come along to offer support during the appointment. However, there comes a point when the family member may be asked to step out of the meeting room so that the lawyer can speak with the person making the document alone. This is in the best interests of the client as well as the family member(s), and is nothing to be worried about.
Here are some of the common reasons someone making a legal document might need to be seen alone:
Client identification
Lawyers have an obligation to be clear who their client is. This is especially important when the client is older or perhaps more vulnerable, because family members may be very involved in their affairs.
The client is the person whose interests are most at stake in the legal matter and whom the lawyer has a professional duty towards. Lawyers must make sure that they are taking instructions directly from their client and not allowing their families or friends to speak for them. The lawyer has to be sure they are taking instructions from the client themselves, and from them only.
This helps to protect the client, to ensure the document that is being created is what they want. It also helps to protect the validity of the document. If someone were to try and challenge the making of the document at a later stage, the fact that the client has given their instructions completely independently can provide strong evidence that the document was created on the basis of what they wanted, without external influence.
Confidentiality
Lawyers have a professional duty to keep their clients’ information confidential. Meaning they cannot share information with anyone except their client without the client’s consent.
Lawyers discuss highly personal and potentially sensitive information with their clients, so the presence of relatives or friends can sometimes inhibit a client from being comfortable to be fully transparent. This can hinder the client’s ability to give comprehensive details and instructions.
Some clients are happy for their family members to be involved in discussions; however, some want complete confidentiality. Meeting clients alone allows lawyers to ascertain how involved they want their family to be in the process and to advise them without any barriers.
Conflicts of interest
Lawyers must make sure they avoid conflicts of interest, which can arise when parties have differing interests and objectives. In most situations lawyers can only represent one individual.
Wills and Lasting Powers of Attorney are very personal to the individual making them, so lawyers must make sure that they are drafted in accordance with the client’s specific wishes rather than any other party’s details and instructions.
The presence of relatives during meetings can inadvertently give rise to conflicts of interest. For example, a client may look to their relative to make the decision based on the impact it may have on the relative, rather than considering their own wants and needs first. Moreover, if a relative has their own personal or legal interests at stake, their presence may hinder the lawyer’s ability to provide full advice to the client, as a lawyer must not advice the relative as to their personal rights or legal position.
Lawyers must make sure that clients are allowed to exercise independent decision making, free from any external influence, and must also ensure that they are not acting if there is an issue of a conflict of interest, or the possibility of one arising.
Capacity
Lawyers have a responsibility to assess a client’s capacity to make decisions. A lawyer must be able to engage with the client directly to evaluate their understanding, decision-making ability, and their capability to communicate their decision through giving instructions.
The presence of relatives during these assessments can hinder the lawyer’s ability to accurately gauge the client's capacity. To ensure a thorough and objective capacity assessment, lawyers should conduct meetings in a private and confidential setting, so that no one except the client and the lawyer are present.
A legal document can be challenged if there are questions as to the individual’s capacity when creating the document. Ensuring the client has the competency to make decisions and sign the document protects all parties and reduces the likelihood of the document being set aside at a later date.
Summary
In conclusion, while the presence of relatives during consultations is often well-intentioned, it can inadvertently compromise confidentiality, create conflicts of interest, and hinder capacity assessments. When lawyers meet with their clients privately, it enables them to advise clients and take their instructions in full, resulting in a document which provides exactly what the client wants. It also reduces the chances of legal documents being contested at a later date and may prevent disgruntled relatives from claiming undue influence successfully.
Lawyers want to make sure that their clients’ choices are upheld and that the legal documents created for them are robust, legally valid and protect them and their families in the future.
Procedures at BakerLaw - caring for our clients
At BakerLaw, it is important to us that we are providing the best service we can to our clients, and we therefore take the necessary steps to ensure that any documents prepared will accurately and appropriately reflect our clients' wishes and instructions. It is therefore our standard practice to see clients alone during the process of taking instructions. Friends or family members are often welcome to accompany their loved ones to appointments, to help them feel comfortable upon arrival. Once the client is settled, any friends or family will then be asked to wait in our Reception, or away from the office if they prefer, until the appointment is over.
Make an appointment
If you or a friend/family member are looking to prepare a Will or Lasting Power of Attorney, and would like to make an appointment to see one of our lawyers, please contact our enquiries team by email at privateclient@baker-law.co.uk or telephone 01252 733 770 and ask to speak to the Private Client team about Wills or Lasting Powers of Attorney. We will be happy to provide details of our fees and procedure, and arrange an appointment to meet to take instructions.
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