Sometimes only the original of something will do. For instance, you usually need original estate planning documents to probate a Will or use a power of attorney. Where should original documents be stored after they are signed? Lawyers sometimes retain originals rather than giving them to their clients. In fact, clients may prefer this because they assume the documents will be safer at the lawyer's office than at their homes. A recent ethics opinion reminded us of the ethical obligations lawyers shoulder when maintaining a client's property.
The Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility recently issued Formal Opinion 2021-300 (the “Opinion”). Titled “Ethical Considerations for Lawyers Retaining Original Wills,” the Opinion adopts the New York State Bar Association Ethics Opinion 1182 titled “Disposition of Wills.”
The Opinion also refers to Pennsylvania Rules of Professional Conduct 1.15 relating to an attorney's obligations to safeguard a client's property. Specifically, it states:
“Lawyers must maintain original Wills until they (1) provide them to the client, the client's executor or some other person authorized to possess the Will, (2) are notified that the client no longer needs the Wills to be stored (such as when a client drafts a new Will), or (3) are authorized to dispose of them by statute, rule or some other procedure.”
The Opinion also goes on to suggest courses of action that lawyers can take, including:
- Maintaining contact information for clients whose original documents they have retained.
- Carefully consider whether to continue storing the documents or forward the documents to the appropriate client.
- Advising clients about how to safeguard the original documents themselves.
Original documents are considered property. Therefore, lawyers that retain original estate planning documents are taking on a clear professional responsibility regarding the safety of those documents.
SOME SUGGESTIONS ABOUT ORIGINAL DOCUMENTS
It's important to store important papers in a safe, accessible location. But is an attorney's office the right place to deposit original Wills and powers of attorney?
We feel providing clients with their original documents is in their best interests for several reasons, including:
Convenience. Clients may need to access original documents quickly, especially in medical emergencies.
For example, you are the agent named in someone's power of attorney or advance directive. One weekend, you need to exercise the authority granted in that document to make immediate and critical medical decisions. But the original documents are stored in your attorney's office, where you cannot access them. Having the originals in an easy-to-access place could prevent a delay in helping someone get the care they need.
Continued Access. Lawyers often move from firm to firm. Others work virtually or have home-based offices. In either case, a client's original documents eventually may be separated from their attorney. Such increased professional mobility can make tracking attorneys and documents tricky.
For example, your Aunt Martha asks Attorney Smith to retain her original Will and other estate planning documents. When she passes away, her executor finds that Attorney Smith moved to another state, taking some of his documents with him. Aunt Martha's executor will have to determine if her original documents were retained at the attorney's prior firm or taken with Attorney Smith. Had Aunt Martha kept her original documents, her executor's job probably would have been a little easier.
At The Law Offices of Scott G Hoh, we give original, executed documents to clients, as well as send an electronic copy. We feel it is best for clients to store their original documents in a fireproof box that is easy for loved ones to access when they are needed.
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Scott Hoh is passionate about the well-being of his clients—and he is willing to do whatever it takes to ensure that their legal concerns are resolved in an expedited, yet satisfactory manner. Call today if you desire excellent legal service from an attorney with a long history of success.
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