The attorney will draft documents differently depending on the identity of the client and the circumstances, including challenging situations such as the following:
(a) Drafting documents in exigent circumstances for a prospective client before the attorney-client relationship is established.
The attorney usually should not draft documents before the client-attorney relationship is established. However, in certain limited exigent circumstances, it may be appropriate to prepare documents prior to the client-attorney relationship being established. An example of such an exigent circumstance is when a client who has a terminal illness and is homebound or hospitalized needs documents. In such a case, it may be appropriate for the attorney to bring certain documents, such as medical directives and powers of attorney, to the first meeting with the terminally ill prospective client.
When drafting documents before establishing an attorney-client relationship, the attorney should consider the following:
Whether the potential client has sufficient capacity to understand and execute the documents;
Whether the potential client is terminally ill, at risk of an imminent decline in health, or in potential need of protective action due to diminished capacity;
Whether the potential client is a possible victim of financial or physical abuse;
Whether the potential client is homebound or institutionalized in a hospital or nursing home;
Whether there are family conflicts that may require urgency;
Whether the document is a medical directive, living will, or power of attorney, which requires less explanation than a will or living trust; and
Whether the attorney has the ability to make more than one visit in a short time period.
(b) Drafting documents for a new client at the request of an existing or former client related to the new client.
The attorney may be asked by an existing or former client to draft documents for a family member, a new client. Because of the potential for a conflict of interest, the attorney should proceed with caution. The attorney should meet privately with the new client, assess capacity, establish an attorney-client relationship with the new client, confirm that there is no material conflict between the two clients and inform the referring client that the attorney’s relationship with the new client is a separate representation which excludes the referring family member. The attorney should consider obtaining a waiver of any non-material conflict between the two clients before proceeding with document drafting for the new client.
(c) Drafting a special needs trust for a person with special needs.
In drafting a special needs trust for a person with special needs, that person may or may not have the capacity to engage the attorney and sign the trust agreement. If the person with special needs lacks capacity to take these actions, the attorney should only draft such a trust at the request of a fiduciary who has the authority to engage the attorney. In drafting such trusts, the attorney should ensure that anyone involved with the special needs trust understands whom the attorney represents.
(d) Drafting documents to be signed by nonclients.
In elder law and special needs law, it sometimes is appropriate to draft documents to be signed by a family member of the client or other third-party in order to further the legal representation. An example is an agreement to be signed by the client’s agent under power of attorney in which the agent agrees not to act against the client’s best interests. Another example is an asset protection trust to be signed by the client’s child as trustee. When drafting such documents, the attorney should resolve whether the person being asked to sign the document is the attorney’s client and, if not, advise that person to seek independent legal counsel before signing the document.