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Family Involvement or Family Interference?

October 11, 2021, by Daniel McGowan, on Probate Law and Procedure |

Because undue influence by a person over another is seldom accomplished in the open for others to see,  Ohio probate and estate planning lawyers are charged with detecting certain "red flags" pointing to the conclusion that something improper might be lurking under the surface of the transaction.  For example, when representing clients with diminished capacity, an estate planning lawyer is frequently approached by another family member who wants to "help" the lawyer's elderly client.  In determining whether this is family involvement or family interference, the drafting lawyer should ask:

  • Is the family member showing an inappropriate level of interest in the transaction?
  • Are you permitted to speak to the client alone?
  • Does the client appear fearful?
  • Are you dealing with a new family member who has not previously been involved in the client's personal, legal or financial affairs? 

Estate planning attorneys are also bound by the dictates of Ohio Rule of Professional Conduct 1.14 which provides that when the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.