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What does it mean when one professional represents both spouses?

Key takeaway

Joint representation means one estate planner acts for both spouses as clients, with confidences and goals shared between both clients and the planner. Researchers in Arkansas describe the arrangement as routine for most estate planners, covering married couples and, increasingly, unmarried romantic partners, with one planner representing both individuals.

Written identification of represented parties

Practitioners describe the need, in each family business succession planning engagement, to establish in writing which parties the lawyer represents and which parties the lawyer does not represent. An owner, a spouse, an adult child, and the business itself are different parties, so the written identification names each one on one side of that line or the other.

ACTEC, a professional body, says a limited engagement, such as preparing a durable power of attorney, does not obligate the lawyer to advise on other matters unless the scope is later expanded.

Separate confidential information in Florida

The Florida Bar's Advisory Opinion 95-4 says a lawyer jointly representing spouses may not disclose one spouse's separate confidential information to the other spouse. The opinion also says the lawyer must withdraw from representing both spouses when the conflict arises.

Conflicts when family relationships change

Researchers in Arkansas describe ethical and professional risks in joint representation if the relationship between the clients deteriorates and the lawyer becomes caught between them. The risk sits in the position of the lawyer, who owes duties to both individuals at the same time.

Practitioners describe potential conflicts in representing a couple, their family business, or their children. Related estate matters, divorce matters, and business matters are the settings where those conflicts can arise, so one family can present several of them at once.

Who takes part in planning conversations

Estate planning conversations are where key decisions on structure, control, and responsibility are made, according to practitioners. Estate planning practitioners describe those conversations as typically limited to the client and the estate planning attorney, with the advisor often included. For a married couple represented jointly, the couple and the shared planner are the participants in those conversations.

Sources
  • The ACTEC COMMENTARIES, SIXTH EDITION is available, in printable copy on the ACTEC Foundation, actec.org (link)
  • Trying to Do the Right Thing, fiduciarylawblog.com (link)
  • Retaining Next Gen Clients In The "Great Wealth Transfer", kitces.com (link)
  • "Joint Representation of Spouses and Romantic Partners: Ethical Conside" by Elizabeth R. Carter, scholarworks.uark.edu (link)
  • Joint Representation of Spouses in Estate Planning: The Saga of Advisory Opinion 95-4, floridabar.org (link)
  • A Blueprint for Family Business Succession Planning, businesslawtoday.org (link)

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