The process in my office usually looks like this:

1. Call the office to make the appointment for an initial visit.  At that time, I’ll get a little information from you and then send you out a Client Information Form that will help you put together some information.  It’s not a test, so if you don’t get the whole thing filled out don’t worry.

How to avoid a hold up at this step: Don’t put off calling just because you haven’t made decisions about your plan.

2. The initial meeting. This is where we talk about your family, your goals, your current plan, and yes, your budget, so that we can come up with the best plan for you and your family.  We’ll go over things like what assets you own, how they are held,  who you want to inherit them. We’ll also talk about the people you want making health care decisions for you and who you want to name as guardian of your minor children.

It’s ok if you haven’t finalized these things before the meeting. Talking about the various roles and what’s involved can help you narrow down your list.

How to avoid a hold up at this step:  Don’t postpone the meeting because you haven’t filled out the entire intake form.  Do talk to your spouse or family so that you can make some preliminary decisions before the meeting.

3. You Decide. After the initial meeting, I generally send out a letter that lays out what we talked about, the preliminary plan, and any decisions that still need to be made.  I also let you know what the final fee is (which we would have talked about at the meeting, also.)  At this point, you can make changes to the plan and send in the signed agreement, along with part of the fee.

How to avoid a hold up at this step: Call the office if you have questions about the letter, and send it back in a timely fashion.

4. Review of Drafts. I will generally send out drafts to my clients so they can make sure the appropriate people are named as their agents, and that the distributions in their Wills and Trusts are the way the want them.  Changes can be made at this point if necessary.

How to avoid a hold up at this step: Open the envelope and review the drafts. Call the office if you have questions and don’t get bogged down by the “legalese.” I go over the documents in details before you sign them.

5.  The Signing Meeting. At the signing meeting, you’ll review the documents one more time, I’ll go over in detail the legal terminology and answer any questions you have.  Once everything has been reviewed, I call in the witnesses.  They are there to make sure that you are signing without any undue influence, and that you are over 18 and of sound mind.  They will watch you sign the documents, and then they sign the documents.

Then, I give you your original documents and a set of copies and I keep a set of copies. The remainder of the fee is payable at that point.

The whole process from start to finish can be a couple of days (for someone with an urgent health situation who can’t wait), a couple of weeks (for someone who is traveling soon and has no plan in place) or a couple of months (for someone with more complex decisions to make, or advisors to consult.)  Usually, it’s about 4 to 6 weeks total, after the first appointment.

As you can see, the process isn’t that scary, and there’s a lot about it that you control. Including picking up the phone and calling.

…[I]f an individual dies intestate (without a will) the probate courts will determine how to distribute that person’s assets. And although the court system may ultimately decide to distribute the individual’s assets in a manner that is consistent with his or her wishes, there is no guarantee that this will occur.

From Why You Should Draft a Will at Forbes.com

Can we do anything about the risks to our less than sturdy aging parents when their over-sized or troublesome pets become a problem? Maybe not much. We can suggest, tactfully, that a home care worker go along on the dog walks “just for my peace of mind, Dad.”

From How to Handle Aging Parent’s Pets .  Note that Scituate Animal Shelter has a program to help seniors with their pets. Click here for details.

Find out on the New York Times Old Age Blog whether you can claim your parent as a dependent.

Get some advice on choosing a guardian for your child.

While we know that we mean well when we want to make sure our parents have their estate plan in place, I think that what our parents hear is “Hey, you are going to die soon and I want to make sure I get some stuff. So, can you go spend money on a lawyer to make my life easier?”  Just as when we were young and our parents didn’t want us to drive late at night or take us to the mall we heard “I am trying to make your life miserable and insure that you are the least popular person is school with the most unfashionable clothes.”

There are a few ways to bring up the issue of your parents estate plan.

1. Don’t Make It About Stuff. Yes, we are all going to die and someone is going to have to figure out what to do with our stuff. However, talking about planning for incapacity can be a better way to approach the conversation. Bringing up the topic by talking about a relative with health issues, or a newspaper article about someone who didn’t have a plan in place for disability and how that affected them and their families can be a good introduction to asking your parents about whether they have health care proxies and powers of attorney in place so someone can help out if they need it.

You might not even have to mention the Will. If you can get your parents to make an appointment with an attorney so they can do their health care proxies and powers of attorney, the lawyer will talk to them about their Will and other estate planning documents.  And having this topic brought up by the professional rather than their children can make them much more open to talking about it.

2. Get Your Papers In Order. If you are going to bring up your parents estate plan, you’d better be sure to have your own affairs in order (or at least have an appointment scheduled with your attorney.)  This can also help allay some of the fears they might have about the process.  You can talk to them about what it was like for you, and how you felt having to consider what would happen to you and your family in the event of your disability or death.

3. Offer Assistance. Your parents may have been putting the process off because they simply don’t know where to start.  If they are open to it, you could get some recommendations for attorneys, call some of them to get a feel for their style and availability and even offer to drive your parents to the appointment if they are uncomfortable driving.  Just bring a book, since you will be sitting in the waiting room. And keep in mind that even if you are paying for the attorney, this does not override the attorney/client confidentiality.

4. Bring It Up Early and Often. These things don’t have to be a one time, big deal conversation, especially since those can be intimidating.  You can mention over lunch one day that you feel so much better having put your estate plan into place. Then you could forward a news article about the topic to your parents. You could mention how difficult things were for your in-laws when their parents passed away because they didnt’ have an updated Will and the family was fighting over things.  You don’t want to be a broken record, but there are plenty of times to casually bring up the issue. When they are ready, they will let you know.

5. Involve One of Their Peers. It may be that your parents are simply uncomfortable talking about these issues with their children. They may have certain ideas about the parent/child role and not want it subverted.  In this case, you could always ask an aunt or uncle to bring it up, or maybe one of their close friends. Again, stress that you want to make sure they have a plan in place for who should take care of health care decisions and paying their bills in the event they are unable.

6. Find Out About The Alternatives. It may be that your parents simply choose not to put a plan in place. And that is their right. However, you can still visit an attorney to find out what the ramifications are to this.  The attorney can explain the guardianship process that would need to be pursued so that someone could make medical decisions, the conservatorship process to allow someone to handle their finances and property if they become unable, how property is distributed if someone dies without a Will, the people generally appointed by the Court to fulfill these roles and the costs.  You can share this information with your parents if you like, so they at least understand the consequences of choosing not to act, and you’ll be as prepared as you can be.

You can also give your parents this article I wrote called “So, Your Kids Want You To See An Elder Law Attorney.”

The American Bar Association explains why in their pamphlet Why Am I Left in the Waiting Room?, which outlines the “Four C’s” of elder law ethics that lawyers are required to follow:

Client Identification: The most important thing for an attorney to convey in the initial meeting is “who is my client.” This needs to be made clear to everyone in the room. The “family unit” or “the situation” cannot be my client.  If you bring your mother in to have her Will drafted, your mother is my client. Even if you are paying the bill. Even if you made the appointment. Even if she tells me in our meeting that she wants to disinherit you.

Conflicts of Interest: Lawyers must avoid conflicts of interest.  Many times, the parents and the children will have different interests in the outcome of a situation.  It may be in the best interest of the child for the parents to gift them large sums of money, or a house. However, it may not be in the best interest of the parents to make these large gifts when they may need the resource to provide for their own care and standard of living.  An attorney could not represent the children and the parents in this situation.

Confidentiality: A lawyer must keep information and communications between her clients and her confidential.  I cannot share any information with my client’s family unless they give me specific permission to.  Sometimes, an adult child will call me to find out where things are in the process, or question why their parent made a certain decision.  I cannot share this information with the child, and they would be better served to ask their parent directly, or, in some cases, mind their own business.

Competency: Many times a child will want to accompany their parent or parents into the meeting because they think their parent won’t understand what is going on, or they are afraid their parent will leave out important information.   However, assessing the client’s capacity if part of getting to know the client.  By meeting privately with the client, I am able to find out if they can explain the problem or express what they need. If someone else is in the room answering the questions, I have a hard time determining if my client understands.

There may be times where I meet with my client privately, and then they ask if their child can come back in the room so that I can explain to them what the plan is. This is fine, since it is done after the meeting with my client and it is with my client’s permission.

These rules make a lot of sense if you think about it – a Will or Power of Attorney can be challenged if the client was under undue influence when it was signed. This might be of special concern to families where one child is the primary caregiver of the parent, and the primary beneficiary under their Will.  By staying in the waiting room, you are less likely to be accused of exerting undue influence over your parent.

So, feel free to call and make the appointment for your parent, and even drive them here. Just don’t feel slighted when I ask you to wait in the waiting room.  I promise there will be interesting things to read.

See also: PA Elder, Estate & Fiduciary Blog.

But, often clients hear me mention a trust for their children and they immediately think of Paris Hilton or some other ne’er do well child living off their inheritance.  “Oh, no, we don’t need a trust for her, we don’t have that much.” Or simply “no, I don’t think we want that.”

It’s at that point that we slow down and I remember how I feel when my computer guy starts talking over my head, and I go back to the Trust 101 talk.  I explain how a minor child cannot inherit property in Massachusetts, and that by naming someone (the trustee) to hold the property for the child (the beneficiary) the family can avoid having to have the Courts get involved and the accompanying time and expense that brings with it.

Depending on the family’s wishes and their budget, it may be that the trust language can be crafted into the Will to make sure that the child’s inheritance is protected when necessary and accessible when necessary.  In other situations, a more complex special needs trust may need to be drafted to make sure that vital benefits are not lost.  Most families will fall somewhere in between.

Having a trust does not mean that you are rich or stuck up or that your children will become reality TV stars. It just means that you are protecting your children and making sure that the inheritance you leave them is handled by the people you trust with the privacy you want.

Just think of the possibilities – for an engagement party the couple could register for gift certificates to their respective attorneys to have a prenuptial agreement drawn up, then after the wedding they need to begin their estate plan, and once the babies start to arrive the estate plan needs to be updated with trusts and guardians.

So if you have lots of weddings to go to this summer and can’t stand the thought of buying another crystal vase or pasta strainer, maybe the couple would welcome a contribution towards the cost of their estate plan.

(This post was originally published in May 2008, and is being republished for the summer wedding season.)

Damomma, also known as Elizabeth Soutter and the woman who helped design my website, has a beautifully touching post on caring for a loved one at the end of life.

“We’re going to turn you on your side,” I said into her good ear, “and in a minute you’ll be all warm and fresh.”  I put my arms on her naked shoulders, lifted when the aid said lift.  My grandmother cried out.  I turned her into my chest,  wondering whether my presence was making it better or cosmically worse.

That was when she inhaled.  Deep against me, nuzzling, just like my babies did.  And it occurred to me that I was probably the first woman to hold her like that in about eighty years.  I rested my cheek against her head, stroked her hair.

As you can see, it’s a good idea to have some tissues handy before you go read the whole story. And return to her blog often, because she’s just as likely to have you laughing out load.

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The New York Times has a new article on Estate Planning as a Family Conversation.

Families that speak freely about estate planning can sometimes address awkward situations that might arise, like the choice of the executor — who is in charge of distributing assets after someone dies — or succession plans for a family business or the leaving of assets in trust….

How families handle delicate issues depends both on the particular circumstances and the personalities involved. Sometimes it is best to have a series of talks, rather than covering everything all at once, Mr. Collier said. Or parents may talk to each child separately, rather than addressing them as a group. Afterward, he says, parents should ask, “What do you think?” Adult children “may have great ideas and opinions,” he said.

I wish the article had focused more on talking about planning for incapacity and who will make health care decisions while you are alive, or handle your property if you are unable, but any kind of conversation about estate planning is better than none at all.

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And, since Spring is on its way and outdoor exercise becomes a little more pleasant, here’s a great reminder about the importance of exercise in healthy aging.

“I’m 86 and have walked every day of my life. The public needs to wake up and move.”

“I’m 83 going on 84 years! I find that daily aerobics and walking are fine. But these regimens neglect the rest of the body, and I find the older you get the more attention they need.”

Regular exercise is the only well-established fountain of youth, and it’s free. What, I’d like to know, will persuade the majority of Americans who remain sedentary to get off their duffs and give their bodies the workout they deserve? My hope is that every new testimonial to the value of exercise will win a few more converts until everyone is doing it.

Hmm, I’m 37 and I don’t walk every day.  I have sneakers, two legs that work and no excuses.  Maybe today is the perfect day to start my walking regimen. After all it is March 4th, what better time to March Forth!

]]> http://www.hamilllawoffice.com/estate-planning/linklove1/feed/ 2 http://www.hamilllawoffice.com/estate-planning/power-of-attorney-powe/ http://www.hamilllawoffice.com/estate-planning/power-of-attorney-powe/#comments Mon, 11 Jan 2010 12:37:38 +0000 admin http://www.leannahamill.com/?p=298 “Exactly how much power am I giving you?”

This was the question my father asked me when I wanted him to sign a durable power of attorney. (Yes, just as the cobbler’s children have no shoes, the lawyer’s father had no power of attorney.)  He was in the middle of selling his house and buying a new one, and I explained that if he was out hiking and fell and hit his head, I did not want to have to go to court to get a conservatorship over him to be able to complete the sale and purchase of the homes.

So, I explained that he was giving me a lot of power. Everything from signing checks to pay his bills to selling his house.  But he was also giving me a lot of responsibility. The responsibility to talk to him about what he wanted, the responsibility to figure out what was in his best interest if I had to be the one making decisions, and the responsibility to be a good steward of his property.  In other words, he wasn’t giving me the power to do whatever I wanted with his property. And as long as he was able to manage things for himself, I wouldn’t be doing anything. But if he wanted me to talk to the real estate attorney or broker, I could.

This is a concern of some of my clients. They worry that if they sign power of attorney over to their children they will lose control.  But what they are really doing is taking control. Control over who will help them. Control over who will have access to their information. And control over who will not.

My father signed the power of attorney. And now when he hikes I still worry, but not about whether I’ll need to be heading to Court instead of the hospital if he has an accident.

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Estate Planning, Probate and Medicaid involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as may be appropriate.

It’s often said that estate planning attorneys sell “peace of mind.”  That is, we help people put the pieces in place that allow their family members (or people of their choosing) to legally assist them with their health care and financial decisions when they are unable.  It’s not thrilling, but when there is a crisis and you can avoid putting “appointment with attorney to review guardianship process” ahead of “visit mom in the hospital” on the list of things to do, you can bet there will be peace of mind all around.

This was further driven home to me recently when I met with a former client. We had prepared his Will about three years ago.  He had difficult relations with some of his children and his Will reflected that.  At the time we did his initial plan, he felt good about what he had put in place.  He called me recently because his health was declining.  Rapidly. And he wanted to change his Will.  The friend who usually drove him to my office was going on vacation the following week, so I was able to see him within a couple of days. Just in case.  He had reconciled with his children and wanted his Will to reflect that.  He didn’t want to put some of his children in the position of having inherited everything, while others received nothing.  He knew that this would damage the sibling relationship and he didn’t want that.  I drafted his new Will and he signed it that day.

While I was in the other room making copies, I overheard him talking to his friend. “I’ve been so worried about this. I haven’t slept. I’m so glad this is done.”  His friend replied, “You should have done this when you first thought of it, there was no reason to spend so long being anxious. You can’t afford that with your heart.”  Back and forth they went, like the old friends they are.

When I went back in the room, they continued to express how glad they were that this was done. The stress that was off my client. The knowledge that when he passes away, his wishes will be honored. We said goodbye, maybe for the last time, and each went on with our day.

This is not the first time a client has expressed to me that they have been sleepless over their plan (or lack of plan.)  Or that their adult children have been worried about what would happen to their parents with no plan in place. And it won’t be last.

And it’s an easy enough thing to take care of – a couple of meetings with an attorney, some conversations and decision making with your family and you’re done.  And if you decide later that you need to change something, just call the attorney and come in and have it changed.  Like I said before, I can’t drag people in  off the street to get these things done, but I can be here for you when you are ready.

*No actual guarantee of better sleep is being made.