Tips on Drafting Retainer Agreements for Couples
Feb 22, 2019
Sandra D. Glazier, Martin M. Shenkman
When a couple starts to work with an advisor to engage in estate planning, it’s
advisable for the intake process to involve creating an engagement letter and
perhaps establishing a retainer. Drafting these documents, however, is often easier
said than done.
The intake process is often nuanced, because it’s important for the advisor to
evaluate whether the engagement is appropriate. Can the advisor meet the needs of
the particular prospect? Are there issues to be concerned about the prospect that
suggest the engagement should be rejected? Are there any potential areas of conflict
or concern? Sometimes, the advisor needs to decide who her client will be when
more than one prospect shows up to the meeting. This might be a couple, a married
couple, a child bringing a parent and other situations.
Any dissent between a couple who come as prospective clients may lead to the
advisor only being able to represent one of them. The advisor should attempt to
facilitate an honest discussion, and if one of the parties is hiding something from the
other, this can be troublesome.
It’s incumbent on advisors, when entering into an estate-planning engagement with
a couple, to explain to them that conflicts can arise in regard to the plan, and in
particular with respect to funding and operating trusts to which irrevocable transfers
might be made. There may be times when clients would prefer to have independent
counsel because if an advisor represents a couple she can’t counsel one to do
something adverse to the interest of the other. This isn’t always an easy task.
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