Why am I Being Asked to Wait in the Waiting Room?

Your relative or friend wants some help from you to get some legal advice and put their affairs in order.

You are already trusted by them to help them with other important matters. So why, when you both make your way to Winns for an appointment with a legal professional, are you being asked to stay in the waiting room?

One of our legal professionals in the Wills, Probate and Trust Team, Alex Russell, discusses the need to wait in the waiting room.

Ethical obligations

Please don’t be worried if we ask to meet with our client alone. There are several reasons that we need to do this.

As legal professionals, we have ethical obligations:

• To determine exactly who our client is
• To effectively assess a client’s capacity to make decisions
• To protect our client’s confidentiality
• To ensure there is no undue influence on the person instructing us
• To treat all clients with the same attention and respect.

Protecting older and vulnerable clients

For older or vulnerable clients, it is likely that family members may already be very involved in their affairs, and they may have an interest in the outcome of their decisions (for example, children helping parents to organise Wills or Trust funds that they may well be beneficiaries of).

By speaking privately to our client, allows us time to determine capacity and to establish our client’s wishes.

When family or friends speak on behalf of our client, although they often only mean to help, it makes it more difficult for us to evaluate the client’s level of understanding.

We need to be certain that the instructions being given match the client’s wishes, and that they are not being pressured or unduly influenced by anyone.

What is a ‘conflict of interest’?

In most situations, legal professionals can only represent one individual. If the legal instructions involve property or money, such as the gifting of a family home where several people (for example children) have an interest, this could potentially be conflicting, so you may need to be represented by separate firms of Solicitors.

By seeing our client on their own, helps us to ensure there is no undue influence over their decisions and that we’re sure our client is not being pressured or influenced to make decisions by anyone else.

There are some situations, however, when more than one family member can be clients of the same legal firm, such as when married couples are making Wills or Lasting Powers of Attorney.

What happens when a client does not have the legal capacity to make a Will or LPA?

It is our duty to intrude as little as possible on the client’s right to make decisions, but where a client is unable to make decisions for themselves, we can advise about other options that you, as relatives or friends, could explore.

This depends entirely on the client’s wishes and best interests as to what might be suitable, and we can help advise you.

For example, Deputyship orders & Statutory Wills may be an option. These need to be prepared by a solicitor and assessed by the Courts to determine whether they are in the best interests of the client.

Can a Will or Power of Attorney be challenged?

It is not uncommon for us to see cases claiming that family members or others had ‘undue influence’ over an older or vulnerable person, and they benefitted unjustly from decisions that were made, such as being a beneficiary in their Will.

Family and friends who maintain some distance from the legal appointments, advice, and document signings, may be less likely to be accused of ‘undue influence’.

If a conflict does occur later, having a solicitor able to attest that they had no concerns about the client at the time can help to defend against these types of claims.

We don’t want our client’s choices and the documents they sign to be invalidated one day in the future because family or friends were overly involved in the matter.

It is likely that you would also want to avoid that type of court case - that’s why we kindly ask you to wait in the waiting room.

Looking for legal advice in relation to Wills, Probate and Trust? Contact our dedicated team today and book an appointment for a no-obligation chat.

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