Question: My wife and I, now in our mid-60’s, attended an educational seminar about estate planning that was advertised in our local newspaper as a way for us to protect our assets, save taxes, and avoid probate. The program was presented by a financial planner and an insurance agent who used charts and handouts to demonstrate to about 40 of us how we could use trusts, wills, and other legal documents to protect ourselves and our assets.

After their presentation, they answered estate planning questions from the audience. Because we were interested, my wife and I met with the financial planner the next week after completing a financial information form. We were given a written proposal recommending that we use certain wills and trusts, buy life insurance, and turn over to the financial planner our assets for investment. We were told that a lawyer would have to prepare the documents, and that we could either see the lawyer they suggested or choose our own. Because the lawyer they suggested appeared to rubberstamp the plan we had received and made it seem that there were no other options, we made an appointment with another lawyer who gave us a conflicting opinion and told us we would be foolish to follow such a plan. We are very confused and wonder which way to go.

Answer: The proliferation of public education seminars presented by non-lawyers throughout the United States is causing widespread confusion among senior Americans. While we recognize the popularity of financial planners, insurance agents, and others using public seminars about “estate planning”, “asset protection”, and “probate avoidance” as marketing and sales tools, a non-lawyer may not give legal advice, offer legal explanations, or make legal recommendations to members of the public.

The practice of law includes the use of professional judgment to give legal advice and counsel to clients which relates to their rights and obligations under the law and the preparation or approval of the use of legal instruments by which legal rights are obtained, secured or transferred. In an effort to protect the public from unsound and unauthorized legal advice, each state limits the practice of law to licensed attorneys.

While the lines may tend to become blurred when it comes to providing insurance and investment products to implement a plan developed for you and your wife, whether a particular will or trust is appropriate under your specific circumstances is a matter of legal judgment that should be delivered by a qualified lawyer, not by a provider of insurance or investment products. And herein lies the trap for the unwary.

When non-lawyers provide information and answer questions about revocable and irrevocable trusts, credit shelter trusts, qualified terminable interest property trusts, charitable trusts, qualified personal residence trusts, and generation skipping trusts, and then create an estate plan after gathering financial information, they are exercising legal judgment for the purpose of soliciting business.

For example, although a living trust may be a useful estate-planning device under some circumstances, many individuals who attended free seminars and were given erroneous advice from non-lawyers about the effect of these trusts on estate taxes implemented this strategy only to later determine that the living trust was not only inappropriate and ineffective, but also needlessly complicated their daily lives. In some instances, the documents were ineffective because they were improperly witnessed or acknowledged.

Taking the NextStep: Whether a living trust or other estate planning strategy is appropriate in a given set of circumstances calls for the exercise of independent professional judgment by a lawyer. The Rules of Professional Responsibility prohibit lawyers from assisting non-lawyers in the unauthorized practice of law and from allowing others to control the exercise of his or her independent judgment. A lawyer’s professional judgment should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. That said, you were wise to seek a second opinion, and we suggest no plan be implemented without the review of an independent attorney who represents your interests.