The Daughter with Power of Attorney
Paralegal Denise has worked with Mr. Whitfield, age 82, for six years. He now calls three or four times a day, sometimes forgetting that he already called. Today he says he wants his will changed immediately to leave his entire estate - roughly $600,000 - to a neighbor he met two months ago, and to cut out his daughter, who holds his power of attorney for finances and health care. He says he does not want 'that daughter anywhere near' the meeting. Twenty minutes later the daughter calls. She identifies herself as his agent under the POA, says she is worried about 'scammers,' and demands to know exactly what her father wants to change and to see his file.
1. How should Denise respond to the daughter's request for information about her father's file and intentions?
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Identify the client - Mr. Whitfield is the client. The daughter is a third party even though she holds a power of attorney. Confidentiality under Rule 1.6 runs to the client and survives the client's incapacity.
What Denise may not say
- She may not confirm that he called, may not describe what he wants to change, may not reveal the current will's contents or the file, and may not answer 'is my father okay?'
- A POA gives the agent authority to act for the principal in the transactions the document covers. It does not make the agent the client, does not transfer the privilege, and does not give her the file. Even a broad durable POA does not override the principal's express instruction that he does not want his daughter involved.
What she can do
- Be courteous and non-committal: 'I can't discuss any client's business, but I will make sure the attorney knows you called.'
- Take down what the daughter says. She is raising a scam concern, which is relevant information, not a request for disclosure.
- Check the POA's scope in the file and tell the attorney, because if the daughter is in fact authorized to act for him on legal matters, the attorney must decide how to proceed - that is not Denise's decision.
- Log the call, the time, and what was and was not disclosed.
2. What should Denise record and flag about Mr. Whitfield's calls and his new instructions, and what must she avoid?
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Do not diagnose - Denise is not qualified to assess capacity and should not use words like 'confused' or 'demented' in the file. She can and should record observable facts: three or four calls a day, repeated questions, the date and content of each call, and that he does not recall the earlier ones.
What to flag, and why
- The classic risk factors are all present: an elderly client, a very recent acquaintance as sole beneficiary, complete exclusion of natural heirs, a $600,000 estate, and urgency ('immediately').
- Rule 1.14 directs the lawyer to maintain a normal client relationship as far as possible while protecting the client. That may mean an in-person meeting, a capacity assessment, documenting his reasons, or involving a third party - but each is a lawyer's judgment. Denise presents the facts; the attorney chooses.
- The repeated calls also create a practical problem: Denise has become the de facto intake for a client whose instructions may change daily. Suggest a single point of contact, a written call log, and written confirmations, so the file shows what was actually said.
Tone - Nothing in the conversation should convey impatience or suggest he is a burden. Clients with memory loss notice both and may stop calling, which loses information the attorney needs.
3. What can Denise do toward the requested will change, and what should she prepare?
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On the instructions themselves - Denise cannot accept a change of testamentary instructions and cannot reassure him it will be done. The attorney must meet with him, confirm capacity, and consider whether the neighbor is exerting undue influence.
Preparing the file (proper paralegal work)
- Pull the current will, the prior estate plan, the POA, the intake notes, and any prior correspondence.
- Build a chronology of contacts, including the daughter's call and her concern about a scammer.
- Flag the issues for the attorney: capacity, undue influence, whether the firm has any conflict (does it represent the daughter or the neighbor?), the risk of a will contest, and the value of contemporaneous evidence of capacity - a detailed meeting note, a recording if the client consents, or a physician's letter.
- Do not contact the neighbor, and do not discuss the change with the daughter.
If the attorney concludes the client lacks capacity - whether to decline, seek a guardian, or proceed carefully is the lawyer's call under Rule 1.14 and Rule 1.16. Denise's role is to make sure the file supports whatever decision is made, while keeping the client's confidences.