Sample Ethics Case—Public Trust and Transparency: The Parent, The Son, and The Updated Estate Plan

Ethical Dilemma:

You are a major gift officer.  You have been working with a female donor (recently widowed) for nearly a decade. The donor’s children live out of the area and see the donor once or twice a year, at most. The couple is a member of your planned giving society and has been for more than 5 years.  The donor calls to tell you they are updating their estate plan. The donor asks you to participate in a meeting with the donor’s attorney to make sure that their planned estate gift is appropriately structured and correctly worded. You attend the meeting with the donor in the attorney’s office, provide the requested information, and document the visit in the donor’s records. Several months after the plan is finalized, you receive a voicemail from the donor’s son challenging your role in the estate plan and accusing you of diverting assets that had been intended for the heirs.

Who’s involved:

• Donor - an individual you have been working with for nearly a decade.
• Donor Attorney - invited by the donor.
• Donor’s Son – lives out of the area.

What are the possible ethical issues; who else might be impacted?

1. Are all your actions within the scope of your role, the boundaries of your role, and in your areas of expertise?
2. Could any of your actions have created a real or implied conflict of interest?
3. Could any of your actions be interpreted as using or possibly using undue influence over the donor?
4. Members of the donor’s immediate or extended family could be impacted by the donor’s decision.
5. Does the son who left you the voicemail message have legal standing such as power of attorney or prior permission from the donor to allow you to speak with him, or for you to return the call without the donor's knowledge or permission?

What are some possible considerations or solutions?

Internal Assessment: 

Clarification and Documentation:

• Review the documentation of the meeting to ensure it accurately reflects your role and actions.
• Clarify your role and intentions with the donor's family, emphasizing that your participation was to ensure the donor's wishes were correctly documented.

Professional Boundaries:

• Assess whether you stayed within your professional boundaries and did not provide advice outside your competence.
• Ensure that in the future, such meetings include the necessary professionals (e.g., attorneys, financial advisors) to avoid overstepping your role.

Conflict of Interest:

• Reevaluate the estate plan to ensure there were no conflicts of interest and that the donor's best interests were considered, and intentions were honored without undue influence.
• Communicate transparently with the donor’s family, if allowed, to address their concerns and demonstrate that the donor’s wishes were respected.

Legal and Ethical Obligations:

• Consult with your organization’s legal counsel to ensure all actions were compliant with legal and ethical standards.
• If necessary, arrange a follow-up meeting with the donor, their attorney, and possibly the family members to address and resolve any misunderstandings.

Do you inform the donor of the son’s call?

• Transparency: Keeping the donor informed about all interactions related to their estate plan ensures transparency and builds trust.
• Respect for Donor Autonomy: The donor has the right to know about concerns raised by their family, as it may impact their wishes or decisions.
• Context and Clarity: Informing the donor allows them to provide context or clarify their intentions, which can help resolve any misunderstandings.

Do you have legal standing to engage with the son?

• Donor’s Consent: If the donor has explicitly given you permission to discuss their estate plan with their family members, you can engage with the son.
• Role and Limitations: As a major gift officer, your primary role is to interact with the donor. You should be cautious about engaging with family members without the donor’s consent or legal authority.
• Legal Advice: Consult with your organization’s legal counsel to understand your legal standing and the appropriate course of action in engaging with the son.

Related Ethics Standards:

Standard 1: Not engage in activities that harm the members’ organizations, clients, or profession or knowingly brings the profession into disrepute.

• Did my participation in the estate planning meeting harm the donor, the organization, or the profession?
• Was my role clearly defined and within the scope of my professional duties?
• Did my involvement influence the donor's decisions in a way that might be perceived as inappropriate or self-serving?
• Did I encourage the donor to communicate with their heirs? Did I document that?

Standard 3: Recognize their individual boundaries of professional competence and responsibility.

• Did I stay within my professional boundaries and areas of competence acting as a fundraiser, or did I overstep by providing advice that should have been given by a legal or financial professional?
• Was my involvement in the meeting appropriate for my role, or did it imply a level of expertise that I do not possess?

Standard 9: Avoid activities that conflict with or may conflict with their fiduciary, ethical and legal obligations to their organizations, clients or professions.

• Did my actions create a conflict of interest or the appearance of one such as a potential conflict between the donor's best interests and the interests of the organization?
• Did my involvement compromise my fiduciary duty to the donor or create a perception of undue influence over the donor's estate planning decisions?
• Did I document the meeting and my involvement accurately and transparently to avoid legal and ethical issues?

Steps you can take:

Inform the Donor:

• Explain the nature of the son’s call and his concerns.
• Reiterate your role and the extent of your involvement in the estate planning process.
• Ask the donor how they would like you to proceed in addressing the son’s concerns.
• Document everything!

Engage with Legal Counsel:

• Seek legal advice to ensure that any engagement with the son is within your legal rights and responsibilities.
• Clarify any legal implications of your involvement in the estate planning process and the donor’s consent regarding family interactions.
• Document everything!

Engage with the son (if appropriate):

• If the donor consents and legal counsel advises it is appropriate, engage with the son to address his concerns.
• Clearly explain your role and the nature of your involvement in the estate planning process.
• Provide documentation of your interactions with the donor and the attorney, if necessary, to clarify your actions and intentions.

What are the likely outcomes if nothing changes?

• Son decides to pursue legal action claiming you and the organization used undue influence on his “elderly and vulnerable” mother.
• The son backs off because he was trying to intimidate you and knew he had no standing or influence over his mother's decision.

What could have made the outcome(s) more ethical?

• Urge the donor to involve their family members as appropriate, and document in writing your strong recommendation that the donor include members of the family in the gift discussion.
• Document in writing, including courtesy copy to the donor’s attorney, your strong recommendation that the donor share any decisions with family members in advance of finalizing this, or any future gift.