Does family asset protection planning sometimes conflict with estate planning? Yes!
How does an attorney explain that to a client? Directly!
an elder law attorney to be proactive and forthright in explaining what those natural tensions are, thereby assuring that the client is making an informed decision. This is one of two important ethical obligations.
The other is that any transaction created for asset protection must be real, with no implied or subsidiary intent to subvert the underlying contract – not even a wink & nod agreement or hint to act beyond what is written. That is a fraudulent transaction, irrespective of the good intentions.
By way of example: a client has 3 children, 1 of whom lives close to the client and able to perform the duties listed in a personal caregiver contract with that child. The contract is used to protect $60K in assets; but in an estate plan, each of the other 2 children would otherwise be entitled to $20K of those assets. That is the inherent conflict. So be it. Even if there is nothing in writing, if you, the attorney, has knowledge of any understanding that the care-giving child will “make it right” with his/her siblings, there is fraud. This must be explicitly stated and understood.