Recently, I wrote here about the story of Milo Elofson, who is currently a victim of elder abuse at the hands of the legal system, despite the fact that his son Greg was appointed as his guardian. (Thank you to all of who responded to come to Greg and Milo’s aid.)
What I’d like to cover today is how to know if your parents or even possibly you could be at risk of this exact same kind of thing.
Unfortunately, I see it frequently, not only do most lawyers not have their own legal planning handled properly—their own parents planning is also not done, leaving you holding a very big bag when your parents get sick, start to experience dementia, and with a mess to mop up and deal with in the face of losing your parents at death. (Remember, if you’re the lawyer in the family, everyone will be looking to you to figure out what to do.)
Handling a parent’s legal and financial matters while they’re alive can quickly become a full time job, taking over all of the hours you used to have available to build your law practice.
That’s exactly what’s happened to Greg Elofson, who had a start up business creating, ironically, a device to keep people with Alzheimer’s safe, and now has had to sideline that business to care for his dad. Greg, despite his best efforts, has had to deal with an intervening court and a conservator he is not convinced is acting in his father’s best interest.
So, what can you do to ensure you and your parents have the proper legal planning in place to ensure you’ll be cared for the way you want (and you’ll be able to easily care for your parents) and not risk losing all of your assets to a dirty legal system?
First and foremost, an estate plan alone isn’t always enough. But isn’t that why we do this—to provide certainty through proper documentation? Yes. And….
Legal documents are important, but as we can see in the case of Greg and Milo, they are not always enough. If you (or your family or your client’s families) end up in court, a judge could appoint a financial conservator who could quickly drain the estate. Or use up the inheritance you expect to receive from your parents. It can happen fast.
The only real answer, in my opinion, is to create and maintain a long term relationship with trusted counsel. And that even goes for us lawyers, too.
Why? Because that lawyer can be a critical link in the chain of command in your family.
Here’s three reasons why:
- It’s our job to looks out for our client’s interests, past, present and future.
- We support execution of our client’s wishes.
- We’re duty bound to ensure our client’s wishes are honored.
It’s our ethical obligation to ensure that we have our client’s interest at heart and that we advise and counsel them wisely on how to protect themselves. We start by designing and drafting solid plans. But that’s not the end of the story.
While the Testamentary Exception is not available while a client is still living, we as drafting attorneys may be able help vindicate our client’s wishes if later a dispute arises.
For example, if a client deliberately under- or dis-inherits a child who then attempts to take over the parent’s estate through a guardianship or conservatorship proceeding, the drafting attorney serving as the then acting attorney may be able to represent the client without disclosing privileged information—in fact, we have an obligation at that point to do so.
Most attorneys do not “terminate” their representation of their client, resulting in a continuity of representation that can be critical if a guardianship/conservatorship action arises.
In addition, with a trusted lawyer on the case, a Conservator is unlikely to go hog wild with unnecessary and expensive proceedings that drain the estate.
You, yes you, really need to talk with a lawyer who doesn’t just push papers, but who will develop a lifetime relationship with you, ensuring your assets are owned in the right way, ensuring your parents’ assets are owned in the right way and will come to you totally protected from lawsuits, creditors, and divorce (a gift they can give you by planning well during life), and ensuring that if you or your parents become unable to manage your affairs, your family stays out of court.
I often think back to what brought me into estate planning and I’ll share that story with you now because perhaps it may inspire you to make a shift in your own practice…
When I was in law school, my father-in-law died. He had spent a few thousand dollars on an estate plan with a well-respected law firm, with the intention of keeping us (his family) out of court and from having to deal with his ex-wife.
You can imagine then how shocked we were to find out that his plan had never been updated and his assets weren’t titled properly and the exact thing that my father-in-law had spent money to avoid, was exactly what was happening — we were in Court and dealing with his ex-wife.
At the time, I thought — this must be malpractice. But then, after going to work for one of the best law firm’s in the country and surveying the lawyers who participated in one of the most used document drafting platforms in the country when I became a member, I found out — this wasn’t malpractice at all, it was common practice.
I swore to practice differently. And, I did. And now I train lawyers to do the same.
So please, before you rely on a set of legal documents (or even a traditional lawyer friend) to keep you and your family out of court and to protect the inheritance you think you are getting from your parents, check again and make sure that what you have is more than paper. Instead, you need a true plan and a trusted counselor to help you make sure it works the way it was designed when you need it most.