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Tuesday, January 17, 2012

Can a lawyer be executor, power of attorney and witness?

When a client sees his or her lawyer to talk about wills, powers of attorney and health care directives, a good deal of time is (or should be) spent talking about who the person wants to act on his or her behalf. Someone has to be named as executor of the will. Sometimes a person other than the executor is appointed trustee of certain trusts under the will. Sometimes a guardian has to be appointed for minor children. Then of course someone has to be appointed as the Attorney under the power of attorney, and as Agent under a health care directive.

The choice belongs to the client. The lawyer will make sure that the choice falls within legal parameters, and hopefully will also share the benefit of experience with previous client estates. From time to time a client will ask the lawyer to act as executor or power of attorney. Most of the time, the lawyer will refuse. Despite a public suspicion that lawyers will act as anybody's executor for the money, let me tell you that the time and headaches of being an executor far, far outweigh any fee a lawyer might collect. Most of us will rather stand on our heads underwater for an hour than act as an executor for a client, and would rather stay under there permanently than act under a power of attorney.

Regardless, it does sometimes happen that the lawyer accepts the appointment, usually because there isn't anyone else and nobody thinks of using a trust company. The following query was sent to me by way of e-mail by a reader and captures many of the questions people have when lawyers are appointed:

"What if a lawyer wrote the will which makes him executor of the will, and then the lawyer is the power of attorney for that person? Does the will become invalid as he also signed as a witness of the will?"

It is perfectly alright for a lawyer to prepare a will which appoints himself as executor. Having the lawyer act as witness to the will is not best practice, in my view, but it does not invalidate the will. The optics are not good when one person fills this many roles. A lawyer always needs to be aware of ethical responsibilities to clients, such as maintaining impartiality and it can appear that the lawyer was not impartial in a case like this.

Obviously I don't know the circumstances of the signing of this will, but I'm imagining a situation that was very short on time or physically remote or in some other way made it difficult to bring in an independent witness. There is also the possibility that the lawyer and the client were personal friends and that the lawyer took on these roles as a friend who just happened to also be a lawyer. No doubt the lawyer's file is thick with pages of notes on why the will and power of attorney were done this way; I know mine would be.

If the will leaves any money or goods to the lawyer as a gift, the will is still valid and so is the executor appointment but these gifts will be void. This is because he acted as a witness. The same rule applies to anyone who witnesses a will.

If you're considering asking your lawyer to be your executor or your power of attorney, check out a trust company first. They are cheaper than you think and very experienced with estate matters. You'll also avoid this kind of situation where one individual is taking on the role of lawyer, executor, trustee, power of attorney and witness.

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