A recurring problem that we have noticed with respect to estate planning documents, besides having none at all, is when the author fails to advise anyone that the documents exist and where the originals are located.
The following is a common occurrence: Elderly clients ask us to prepare estate planning and end of life documents. When the documents are ready, they come to the office and sign all the originals, which are properly witnessed and notarized as required by the applicable laws. As their attorney, we then send them the signed originals with instructions to inform those whom they have appointed as fiduciaries of the location where the original documents are stored. Time passes, and the client becomes ill or is incapacitated such that he or she is no longer able to handle their own affairs, and has no recollection of the existence and location of the original documents. As is often the case, the client has never told anyone where the documents are stored. Through review of mail and other documentation, the family learns who we are and contacts us for information about our client, including the existence of any relevant documents and a request that we provide them with any copies that we have retained. Unfortunately, if our client is still alive but unable to authorize us to disclose the existence of the documents or to provide copies to the family, we may not be in a position to do so given our ethical obligation to preserve the confidences of our client. With some limited exceptions, the attorney-client privilege prevents an attorney from disclosing client communications or providing copies of documents to another, unless authorized to do so by the client. To further complicate the situation, we simply have no way of knowing if the client decided to prepare newer documents with another firm, thereby revoking the previously prepared documents, in which case the copies in our files no longer represent the wishes of our clients.
This dilemma leaves the family in a bind. The planning documents were prepared and signed to make it easier for the client’s family during the challenges of an illness and often while facing end of life choices. However, because the client did not disclose the location of the original documents and did not authorize the attorney to communicate with the designated fiduciaries, the family may be left to scramble in order to provide the attorney with sufficient information to convince us that releasing the information is what the client wanted. This puts the attorney in an untenable position.
If the original documents cannot be located and copies cannot be released, or if released not accepted in the absence of the originals, the only option that remains is an application to the Probate Court to have a conservator appointed. Within the application is a question about the existence of some of the estate planning documents. We recommend disclosing information to support the existence of the documents and the identity of the attorney who prepared them, as the court can require disclosure of copies in considering the application. Notwithstanding the discovery and disclosure of copies, often originals will be required, so we encourage our clients to advise someone where the originals are stored.

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