Facilitating Difficult Family Discussions in Family & Probate Law

By: Deborah Kane Rein and Frank Kenison

Both probate and family law are areas where managing clients’ emotions sometimes can be as important as the legal advice lawyers give them. Moreover, in these same practice areas, attorneys advising their client to deal directly with the emotions present in their inter-family dynamics can avoid future costly confrontations. Encouraging family members to engage in difficult discussions not ordinarily encompassed within the attorney-client relationship should be considered a best practice in these emotionally-fraught areas of law practice. One way of assisting clients in this regard is to recommend a facilitator to help adult family members have difficult conversations about implications for the family of divorce, remarriage, estate planning, medical and end of life issues.

These discussions can occur either (a) to assist the client in making decisions that will have an impact on other family members or (b) to follow up and explain decisions that have already been made. They offer an opportunity to include the entire family in discussing issues that will affect them in some way. The discussions do not require a waiver of attorney-client privilege yet allow family members to have substantive discussions about important family matters, to educate and prepare them for the future.

Many family law practitioners have seen cases where adult children take sides with one parent or another, where they insert themselves in decisions that need to be made by their parents as they terminate their marriage, or where a parent’s concern about adult children influences the decisions they make about their own future. This intervention – directly or indirectly – can be the result of years of certain family dynamics, grief over losing a familiar and comforting family structure, concern for a parent’s well-being, or anxiety about their role in the parents’ post-divorce life. Estate planners face similar dilemmas and, while they can prepare estate plans which articulate the intent of the parents, those plans often fail to explain unequal distributions of estate assets or the appointment of some but not all children in fiduciary roles. The intentions of the parents are often frustrated or contested by protective or fearful adult children. And the persons most capable of addressing the children’s anxieties – the parents – are deceased.

Rather than having the attorney-client relationship hampered by insidious family dynamics, it may be in the client’s interest for the lawyer to refer the family to a mediator, who can facilitate a discussion among all involved family members. If done prior to final divorce decisions being made, or an estate plan being finalized, the process can help the clients make better decisions for themselves. For example, after such a discussion, it may be revealed that the children are not as attached to the camp in Pittsburgh, NH as previously thought, making easier the decision to sell the real estate to provide cash for the marital estate, or to avoid it as a potential probate asset.

Likewise, if the discussion occurs after decisions are made, especially in an uncontested divorce or in an estate plan, the parents can explain to their adult children why certain decisions were made and affirm that these are their decisions, which they wish the children to respect, thereby, perhaps, relieving some of the grief and anxiety that can lead to costly and time-consuming litigation.

Having discussions with adult children before and/or after a remarriage can be crucial toward supporting a successful remarriage and avoiding future conflict. Likewise, advising adult children of your estate planning decisions and the reasons for them may alleviate the surprise and resentment which may arise subsequently and drive family members to court. The same reasoning applies to the execution of advanced directives by parents. Including adult children in these conversations may avert the subsequent will contest action and may facilitate a consensus by family members over the use of an advanced directive to make end of life decisions and provide support to the agent implanting these actions.

Open communication is a powerful tool in avoiding unnecessary conflict for families. Knowledge and lack of surprise can temper unproductive emotional responses. In order to offer peace of mind to clients and protect against future litigation, an attorney working with clients on family-related issues would be well-advised to recommend facilitated family discussions on difficult issues.