If you could speak to one family member who has passed on, who would you pick?

I am sitting at the kitchen table my grandfather fabricated out of a used iron spool upon  which paper was wrapped as it came off the machines at the Weyerhaeuser plant  on the waterfront of Everett, Washington, my hometown.  The table is round, and has a Formica top.  Generations have eaten here.

I have chosen to write this piece sitting in the exact spot where ten years ago this September 11th I  first heard Bob Edwards of National Public Radio interrupted, then report that an airplane had flown  into one of the trade towers in New York.

It is the same spot where my grandfather listened all night to reports of the Normandy invasion on June 6th  1944. The radios have changed in that time, but they sit in the same place in  the kitchen.

Leslie Ralph “Spud” Hartman built this house himself in 1941-42 with the assistance of my grandmother Lenore and a few  friends. After Pearl Harbor was attacked December 7th 1941 men rushed to join the military. The government also began to designate certain industries as strategic, and also began to declare certain goods as war material.

Seeing the speed at which goods were being commandeered by the government he took delivery of the Sears-Roebuck  furnace he had ordered for this place, even though he wasn’t really ready for it. He spoke to the lumber supplier for the home, Martin Lumber, still on Broadway and Wall, to store it for him until he was ready.  The next day the furnace was declared war material, but he and grandma and my mother had heat throughout the war because he had paid attention. He was self reliant.

Then, without telling anyone he tried to join the Navy. Too old, he was told. And besides, he was working in a strategic industry.

And so he spent the war here at the mill, listening to reports from the front in this kitchen on a radio that sits where my radio sits. He watched the P-38 fighters training out over our bay, and one day saw a one of these airplanes in a steep dive fail to pull out in time and crash into our beautiful sea.

This house had the first television on the block in 1954. Spud won it in the Salmon Derby, held each year in our bay  when salmon was plentiful. The house was crowded with neighbors for weeks after that.

I was happy I had a television on September 11th 2001 because nothing Bob Edwards said prepared me for the pictures of the twin trade towers on fire then collapsing.

I had been calmly eating my oatmeal until Edwards report. He managed to get an eyewitness on the phone describing
how people were jumping from the towers. What struck me most about the interview was how calm and matter of fact the eyewitness delivered the facts, like he was calling a ballgame.

I recall thinking this, then contrasting to the reports of the same era as World War II. Perhaps Edward R.
Murrow was less emotional than the reporter describing the crash of the airship Hindenburg at Lakehurst New Jersey in
1937, but he was never flat.

The bumperstickers that declare “We will never forget” and display the flag are tattered, faded and worn now 10 years on. But this kitchen table is still here, and my memories are as fresh as my grandfathers were of his war. And I would like to compare notes.

Happiness for Lease

We all go a long way to have a slice of paradise. We go even further to leave it to our family when we pass. Into my office people come with revocable living trusts which are supposed to pass the timeshare at death. Mostly a step has been missed somewhere, and instead the asset is thus subject to an ancillary probate in far off Florida or Hawaii. Sometimes the owner of this rented happiness is still alive when they see me, and we can make a fix.

I have come to see the vendors of these places understand the need we all have to at least believe there is a simpler, slower time for all of us, if we could just find it. These vendors of happiness are waiting for us.

These properties all have names that evoke some kind of earth bound heaven; Island One, Palm something or other, Fairview, Fairshare, Fairwinds, Fair(insert adjective, verb or noun ) its all very fair. Can’t you see that for only about the price of a new car you can have happiness even of it is for just a few days a year? Like autos, the value drops precipitously when you drive it off the lot.

Often the names recall a golden age of sail or perhaps the perceived simpler life of the Caribbean. It is a chance to be your own Jimmy Buffett, and check out of our tragically bourgeois existence. Or perhaps we feel an exclusiveness because the timeshare anchor we bought into features the word “club” e.g. Wyndamn Club, Ocean Club, Bay Club, Penthouse at the Club,  et. sequitor.

What people believe it seems, when they sign the papers for a tiny bit of dirt on a beach for a short period each year, is that this will be the answer, the escape from the dreary life we have here in the rain. I wonder if they are right, but I doubt it. Sometimes they come to see  me to try to get out of the contract. Sometimes the heaven they bought is just hell on earth. Wouldnt a really expensive hotel room every so often been a better deal?

I will stick with the six Jimmy Buffett CD’s in my car’s stereo. Someone has to remain behind to mind the store, weighing in on nice ideas gone bad.

True Stories from the Twilight Zone Part 2

Modern medical science is a wonderful thing. I have witnessed with my own eyes how one can be suspended between life and death in that places Rod Sirling used to call the Twilight Zone. Sometimes however we just age into that place of time and space the rest of humanity calls “dementia”.

In this state your Will does not help you. It is a “dead letter” until you yourself are dead, then zombie like the Will comes to life.

So what do we do in the Twilight Zone? Once there, you are not competent to sign anything that anyone will recognize. Instead someone, often a family member launches a guardianship proceeding. This takes at least two lawyers and the associated cost; one to file the petition and one appointed by the Court to act as your guardian ad lietum.  If in your demented state you declare you are not a danger to yourself financially or physically a third lawyer is assigned and we may end up in trial.

I have been such a third lawyer. Even though it was clear my client was hearing only the signature strings of The Twilight Zone we spent a day in trial. Washington’s guardianship statute does not give the third lawyer the latitude to concede defeat, he must go to trial.

And so on a sunny day in early May I spent my time in trial with my elderly client who wandered around the courtroom during the proceeding, hollering things like “There is the Judge, on his Altar!”. ( Some lawyers I know might say my client wasn’t so demented after all.)

The cost of all of this was well over $10,000 to the client. The experience: priceless.

The take away from all of this is there has to be a better way. Is there not a means to convey to some trusted person or people a means to handle financial and health care decisions when you cannot? The short answer is yes.

1) Durable Power of Attorney. The power of attorney means you hand someone else the authority to work for you in your place. It is “durable” because it survives your incapacity or dementia. Otherwise if not referred to as durable, the law says that paper lapses because you are no longer able to revoke it when you are in the Zone.

This document can be effective immediately, leaving open the chance someone might use it a little too early, or “springing” taking effect when you can find a doctor willing to say in writing you cannot handle your affairs any longer.

The revocation and reassignment of this authority as dementia approaches is the stuff of legend in my business, leading to that court fight and perhaps guardianship you tried to avoid in the first place.

2) Care Managed Trust or Revocable Living Trust. This device allows you to put into your own hands as Trustee then the hands of a trusted person as the successor Trustee all your property. It can also take the place of your Will. It is not a “dead letter” as you enter dementia but instead is very much alive and continues to operate as you pass from the Twilight Zone across the Great Divide. It can avoid probate.

I have yet to see one of these instruments come into the office that has not been terrifically expensive to set up, maintain, and in the end, doesn’t have all the property transferred to it, necessitating a probate of the left out property.

All kinds of things happen in the Twilight Zone. The best you can do is make some judgments ahead of entering that dimension of time and space, decide to trust or not to trust, and then live the rest of your life.

True Stories from the Twilight Zone Part 1

There is a dimension of time and space where modern medical science allows us to linger before passing over and beyond the Great Divide. States have sought to address this waypoint in the Twilight Zone by mass producing easily signed directives to physicians designed to allow persons wishing to pass on without being kept alive by machines. The form is often referred to as a “living will” in the vernacular.

I Googled for the form and found someone is willing to sell you a document for ten bucks that is identical to that which is available for free at Revised Code of Washington 70.122.030. Now the form is fine, but it is simplistic, and mandates decisions made the signatory who is usually without either a law or medical degree.

True Story: The date is January 10, 2011. My best friend lays in a coma in Seattle. His brother and I are looking at the directive to physicians I drafted and my friend signed just months earlier. The neurologist thanks me for the clarity and ultimate discretion we vest with the medical attorney in fact, namely his brother. Doug was in the Twilight Zone, and he wasnt coming back. There had however been several days earlier where it was questionable whether he would return. Because we had a conversation about what the directive should look like, because we have some understanding of what it means to get the heart and lungs going again, and because I at least possess the legal understanding of what we were doing, we were allowed the grace to hang on to hope for just a few more days before removing life support.

The forms will not give you this personal intent as drafted expressing accurately the mix of legal and medical desires of the individual. Maybe that is why it is free.

More True Stories: I am a veteran of story after story of families coming in for the probate telling me the recently passed loved one had a directive to physicians neatly printed on a 4 X 6 card which, when received by the medical staff caring for their loved one,  meant right away, “care”, as we have come to understand it, was withdrawn. Death soon followed and no one in the family was really ready for the event.

Perhaps the question a person signing this document really has to ask themselves is How quickly do I want to leave the Twilight Zone?

State Sponsered Chaos at Death

Believe it and you know you can, we can count on the State to have the final say as to who gets your stuff when we die if we don’t timely make that decision ourselves.

“Timely” means after you are age 18 and before you die.

“Make that decision yourself” means making a will or having will substitutes in place.

In Washington State when you die without a will you are considered “intestate” and the statute is clear about what happens. If you are married it means much if not all of what you have goes to your spouse. Any property you brought to the marriage or inherited is split between your spouse and your kids. If you don’t have a spouse the kids get it, without much control. If you live somewhere else it might be different, but the results are the same- you have no say.

Think about it. Do you really want your 19-year-old son to gain control over enough cash to ruin his life? This happens more than we would like. Even so, a will substitute is not necessarily that great a means around the intestacy statute that if applied might slow him down a bit.

Making your 19-year-old son a payable on death beneficiary of a savings account means he gets the money sooner, and can lead to all kinds of tasteless events. I literally have a file in my office where the young man showed up for the funeral in the new car he bought after his father passed. “Look what Dad bought me!” he told the shocked mourners.

One thing you cannot pass at death is good manners, even with a will, but you might curb the excesses of sudden wealth.

This Won’t Happen to Me

Lawyers, like most groups, have listserves. I am in a few associated with the topic of probate and trust.

This came over the listserve today, July 6th 2011:

20 year relationship no marriage care giver/ kids took truck and served  client
 w/5day notice to quit within 2 days of death (death-July 2, 2011)  Realize
it’s partnership principles but what can be done to stop the  kids?

Before I say something real legal let me say this: This bit of barbarism is justified by all kinds of reasons; She never really loved Dad – only his money, She was horrible to the grandkids, This house is ours, not hers…the list goes on. None of it has anything to do with the law.

People inherit subject to probate, be there a will or not. True, if Dad never did marry the woman he lived with for 20 years the presumptions run to the kids, assuming he actually divorced or their mother died first. That is what dying without a will means. People will not Do the Right Thing absent something expressing Dad’s intent, like a will.

With or without a will probate is an orderly, statutory process designed to ensure everyone has a say and rights are protected. Tennant, which is the least this woman is, are entitled to 20 days notice to quit the premises. She is not a squatter, as Dad evidently desired her to live there.

What happened here is more reflective of pillage, and has nothing to do with the Rule of Law.