Family Estate Planning and Conflict of Interest

Jacksonville-beach kids divorce estate planning.jpgWhenever a Florida estate planning lawyer represents two or more individuals, there is always at least the potential of a conflict of interest, even when the clients agree about everything.

The same is true when a married couple needs a Florida attorney’s help with an estate plan. Depending on the circumstances, the Florida estate plan may well result in one spouse being deprived of a legal right. Whenever a person in a joint representation may be deprived of a legal right, the attorney must advise that person that he or she is entitled to seek the opinion of an independent attorney and, in fact, we are required to recommend a second attorney be consulted.

However, when both spouses are adamant that they wish to be represented by the same lawyer, the lawyer should incorporate both spouses’ desires in what is called a “joint” or “dual” representation letter that is signed by both spouses. This type of letter is important because both spouses have acknowledged that each was advised of the potential or actual conflict and waived the right to seek independent counsel.

There are some situations in which each spouse should be represented by an independent lawyer — such as a premarital or separation agreement and, depending on the circumstances, some second-marriage estate planning situations may also require the need for two lawyers. In addition, where assets are transferred from one spouse to another, extra protection may be warranted.

Our representation in estate-planning situations generally includes

1) review of existing wills, powers of attorney, trusts, etc.;
2) recommendations about how each of you wants to dispose of your property at disability or death;
3) preparation of documents necessary to accomplish your goals, including Florida wills, Florida powers of attorney, Florida health-care powers of attorney and the like.

It is important to understand that we are unable to keep secrets from your spouse and that anything you tell us will have to be disclosed to your spouse.

While in most circumstances one Florida lawyer couldn’t represent both of you, your knowledgeable waiver of having independent counsel represent each of you is the reason a Florida Estate Planning Lawyer is able to proceed in representing both of you. The Florida Estate Planning Lawyer should make sure each of you will provide open and complete disclosures and exchanges of information, and if a conflict does arise in the future, the Florida Estate Planning Lawyer must withdraw from any further joint representation and cannot represent either of you in the current matter or in another matter where the information disclosed is used against the other.

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