National Business Institute Presentation 2015 - Trusts 101: Ethical Considerations, presented by Attorney Howard H. Collens

1. TRUSTS 101:
ETHICAL CONSIDERATIONS
PRESENTED BY:
HOWARD H. COLLENS, ESQ
NOVEMBER 13, 2015

2. I. Who is Your Client?
II. Confidentiality in Third Party
Communications
III. Assessing the Client’s Capacity
IV. Avoiding Fraudulent Transfers

3. Useful Resources:
• Michigan Rules of Professional
Conduct
• The State Bar of Michigan – Ethics
Opinion Service

4. Relevant Rules of Professional Conduct
• MRPC 1.6 Confidentiality
• MRPC 1.7 Conflict of Interest
• MRPC 1.14 Client under a
Disability

5. Testamentary Capacity
• Testamentary and Capacity
Needed to Make a Trust Now
The Same Standard
• MCL 700.2501

6. Who is Your Client?

7. 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

8. Confidentiality in Third Party
Communications

9. 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

10. 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

11. Assessing The Client’s Capacity

12. 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

13. 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

14. Fraudulent Transfers

15. 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

16. Thank you!
Howard H. Collens
Galloway and Collens, PLLC
26075 Woodward Ave, Suite 200
Huntington Woods, Michigan 48070
248.545.2500
GallowayCollens.com
Howard@GallowayCollens.com
Twitter: @HowardCollens
@ProbateLawMI