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Newly proposed fiduciary rules: Will they impact estate attorneys?

The financial publication Wealth Management notes at the outset of a recent article on select professionals and the duties they owe to clients that estate planning attorneys haven't historically been deemed to be providing investment advice in narrow terms when they work on behalf of clients.

 

Put another way: Although those attorneys "already owe their clients a high standard of care and a duty of loyalty under most state laws," they have been considered differently from investment advisers who counsel clients solely regarding money-related decisions. Those professionals have a separate fiduciary duty under federal law that can yield adverse consequences when breached.

Concern has now arisen in some quarters that, owing to proposed U.S. Department of Labor fiduciary rules that provide for a marked expansion surrounding the definition of "investment advice" (those rule are currently in a pause pattern), estate planning attorneys might be dealing with a higher standard of duty and liability in the future.

That is, they could be more closely lumped together with financial brokers and advisers whose professional job is narrowly focused on devising money-related strategies for clients.

That is not, of course, the foremost task for an estate administration attorney, who deals with myriad matters not strictly construed as investment advice.

In going about estate work, though, proven lawyers providing sound and tailored representation to individuals and families often -- and necessarily -- address matters relating to wealth preservation and distribution.

Going forward, will they be subject to a heightened fiduciary duty every time they do so, even with reference to a single transaction and when their counsel relates more generally to decidedly estate-oriented matters?

As Wealth Management notes, much seems to be in flux right now, with future changes quite possibly leading to rules regarding estate planning advocates that trigger higher responsibilities than those that already exist.

One point regarding the above bears a prominent mention, specifically, that any broadly trained and comparatively experienced estate administration attorney acts with knowledge and a strong appreciation for ethical and legal imperatives in every client representation.

A changed legal landscape will not change that. And, if it does, an attorney who commands a broadly integrated and singular background in both law and as a tax professional would reasonably seem to be in a comparatively advantaged position when it comes to rendering advice that is arguably investment-oriented.

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