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TRUSTS 101:
ETHICAL CONSIDERATIONS
PRESENTED BY:
HOWARD H. COLLENS, ESQ
NOVEMBER 13, 2015
I. Who is Your Client?
II. Confidentiality in Third Party Communications
III. Assessing the Client’s Capacity
IV. Avoiding Fraudulent Transfers
Useful Resources:
• Michigan Rules of Professional Conduct
• The State Bar of Michigan – Ethics Opinion Service
Relevant Rules of Professional Conduct
• MRPC 1.6 Confidentiality
• MRPC 1.7 Conflict of Interest
• MRPC 1.14 Client under a Disability
Testamentary Capacity
• Testamentary and Capacity Needed to Make a Trust Now The Same Standard
• MCL 700.2501
Who is Your Client?
Who is the client?
• Married Couples• Third Parties Involved in the
Planning Process• When A Third Party Pays• Representing A Fiduciary• Client Who Lacks Capacity• Protecting Yourself
Confidentiality in Third Party Communications
Confidentiality of Information
Rule 1.6
• A fundamental principle in client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation
Confidentiality in Third Party Communications
• Maintain Confidences and Secrets• Don’t Inadvertently Waive the Attorney-Client Privilege• Obtain Waivers of Conflict and Confidentiality • Beneficiaries and Interested Parties During
Administration• Working with other Professionals• Discussing Who Our Clients Are• Transferring Files• Maintaining Confidences After Client’s Death
Assessing The Client’s Capacity
Client Under Disability/Lack of Capacity
Rule 1.14
• When a Client’s ability to make decisions in connection to representation is impaired, the lawyer shall work to maintain a normal client-lawyer relationship
Assessing Client Capacity
• Incapacitated Individual
• MCL 700.1105 – Legally Incapacitated Individual
• Testamentary Capacity
• MCL 700.7601
• What to Look For and Tools to Use
• Challenges to Capacity
Fraudulent Transfers
Fraudulent Transfers
• Use of revocable trusts to avoid creditor’s claims
• Use of revocable trusts to avoid spousal allowances
• MCL 700.7506 and MCL 700.7605
Thank you!
Howard H. CollensGalloway and Collens, PLLC
26075 Woodward Ave, Suite 200Huntington Woods, Michigan
48070248.545.2500
Twitter: @HowardCollens @ProbateLawMI