Why I Say No When Clients Ask Me to Be Their Attorney for Property

My policy is to decline to be appointed as an attorney for property for any client.

Here are my reasons:

To act as an attorney for property is an open-ended commitment. The client could become incapable at any time. The onset of their incapacity could be a defining event or it could be a matter of uncertainty or controversy that needs resolution. They could live with incapacity for many years. A commitment to act as the client’s attorney for property is a contingent liability. It may become real at a bad time for me, professionally or personally, and become an ongoing burden.

As this is a policy, I don’t have to consider each request on its merits. It doesn’t matter if the client is delightful or difficult, wealthy or not, has complicated or simple financial affairs. The answer is no.

Some clients say they have no alternative. They don’t have a suitable family member, they may not want to ask a friend, or they are concerned about the fees a trust company will charge.

In my experience, the client always has an alternative. The first step is to help the client understand the role their attorney will take in their life, the work involved, and why compensation is allowed and reasonable. I explain the supports and options they can build into the arrangement to ensure the job is done properly and is not too much work for their chosen attorney. And then the client has to think it through, and talk to the people in their life.

I appreciate and respect that acting as power of attorney for property is a service some lawyers choose to provide. On a few occasions I have agreed to act as an estate trustee during litigation. I can’t say I have found that work as useful to my professional development as taking on increasingly complicated drafting or litigation work. My choice has been the right one for me.

Finally, agreeing to act as an attorney for property for a client creates a conflict of interest at the time the power of attorney is granted—the client should be referred to another lawyer for independent legal advice—and can continue to do so while acting as attorney. A lawyer acting as attorney will have to be mindful of conflicts of interest and address them as they arise. The time spent on conflicts will likely be non-remunerative.