Little Sheets of Paper

Tonight my Dad is in the rehabilitation center following knee surgery. From what I gather this is a little like giving birth; it is awful for mother and child but both are really happy a few weeks later.

Upon admission, transferring from the hospital and full of pain medications, a vast array of paper was placed in front of him requesting his signature. Some was about insurance, some about care, and some could end his life.

These little sheets of paper included a health care directive to physicians that gave the facility permission to end his life had he checked a box that said so. Four days after surgery and still in considerable pain, I question his competence to make a reasoned decision. The directive is green in color; green for “go”.

Because my mother was there she stopped the process until I could arrive. Upon my arrival the nurse explained again to my parents, and me, the purpose behind the health care directive was “so the doctor would not have to read through all the legalese of a more complex document” . That is literally what she said during her remarkably practiced speech for all incoming patients.

In other words the Doctor has no time to understand the intent of the patient about whether he lives or dies as expressed when contemplating these issues in a competent, sober manner while consulting with his lawyer who then drafted the same based on the law and his experience.

Just check the box on the little sheet of paper sir, it is better for all of us. That’s right, the green one. Green for “go”.

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Dont Take The Hearsay Rule Personally

I have clients that do this.

They come into the office, relate a story and declare a conclusion. I lean back in my chair, review my notes and I tell them about 2/3rds of it is inadmissible as evidence. This is not well taken, like I am telling them they are unable to relate what they heard accurately. Well I’m not, but the hearsay rule is.

The rule reads something like this:

No statement, made out of court, shall be admitted into evidence for the truth of the matter asserted.

What?

Lets break it down: HEAR. You hear someone something,  assume it is true, then turn and then SAY it to someone else like a Judge and ask him to assume it is true too.

Example: “John told me the light was green when I went through the intersection”. Using this statement to prove the color of the light is hearsay. My clients will then  come to Johns defense, as if he is being accused of lying, which really confuses the issue.

It’s so much better if you actually saw the light. “I saw the light was green when I went through the intersection”. Not hearsay.

It’s just remarkable how often I interview a witness or a client and find most of what they have to say is based not on their own first hand knowledge, what they actually saw but instead a mass of hearsay, peppered with preexisting judgments about the actors involved and a personal agenda.

Hearsay. It’s an old rule, but a good rule. Please, don’t take it personally.

Obi Wan Kenobi Goes to the Bank

Luke Skywalker drives into Mos Eisley with Ben Kenobi and the two droids his uncle has bought fom the Jawas. They encounter imperial storm troopers looking for the escaped droids.

“These are not the droids you want” Kenobi suggests to the lieutenant trooper.

“These are not the droids we want” the trooper repeats.mos-eisley-spaceport-stormtrooper-high-definition

“Move along” Kenobi suggests

“Move along” the trooper repeats, and the speeder inches away as Kenobi says something about suggestions to simple minds.

The episode from Star Wars is played out daily in banks encountering durable powers of attorney and other estate planning documents. More often than not I am called in to redraft something to make the bank happy, or sometimes I go myself because I apparently really am a Jedi Knight, I have mind control over the young man at the cheap desk in the lobby.

“These are legal documents” I say, and the young man repeats.

“The attorney in fact needs access to her fathers money so she can pay the mortgage this bank holds on his house.”

“I can see your client needs the money to pay us what we are owed” he says.luke at the bar

“Why don’t you take a moment and make the withdrawl” I suggest.

“Let me take a moment and make the withdrawl” he says as he leaves us sitting at the cheap desk.

Now all I need is a catchy theme song.

After Death Facebook Lives On

Todd Pack is to be thanked for this issue, his blog post this past week is entitled “What Happens to Our Facebook Account After We Die?”

The comments following the post describe a litany of unintended events both by the team at Facebook as well as the individual subscriber, who is now across the Great Divide and cannot now edit the profile. Like everything else that a dead person has an interest in here on earth, they fall into the control of your personal representative as soon as some probate court admits your will to probate.

I guess I will call the dead man’s interest in his Facebook page a “license” but I am sure the people who practice in the field of “intellectual property” ( yes that is what it is called ) might have a more elegant name for what Mark Zuckerberg hath begotten. Instead Facebook is there for us all to use, as long as we follow the rules. Given that Mr. Zuckerberg is only 27 years old today, I doubt he has given much thought to death and what the rules will be then.

One woman describes how her mother passed in 2007, she developed a profile in 2008 on Facebook, and then started getting requests she “friend” her dead mother.

For me the “autocomplete” feature of the software tears the bandage off each time I am writing to my surviving friends about the loss of our close friend Doug, then the sentence automatically spells out his name and a picture of his once happy family. The ostensible purpose is to ask me to include him in the discussion. Yes Mr. Zuckerberg, I would love to have another conversation with Doug, but I have a few years left thank you.

Meanwhile the other social networks are not any better. Linkedin sent me a solicitation to connect with Doug recently as well. I am thinking of Mary Todd Lincoln and seances held to have contact with her lost son in the White House might have had better luck.

So what to do? One commentator to Mr. Pack’s posts suggests directing the personal representative of the will  go about the process of winding these things up. This is a good idea, but I suspect the Letters Testamentary issued by our state court may not be recognized in Massachusetts, or wherever Facebook seems to be headquartered. The company, unlike it’s product, is not public.

Lets try it. At worse this latest generation of billionaires will ignore us and thoughtlessly interrupt our efforts at closure.

Empty Grandmas Accounts Before She Dies to Avoid Probate?

I wrote this post because I saw this question as a top search on my dashboard.

The answer is no. There are several problems with this approach.

1) Crime. That is what this is, Crime. Go to Jail, Do not pass GO, do not collect any $200. You will be characterized as “financial exploiter” at least if you do this in the state named after the first President, and that means you fall under the “slayer statute” and as we all know, slayers do not inherit. Or at least I think we all know this.

2) Breach of Fiduciary duty. There I go again with all that legal stuff. The trouble is that “legal stuff” can get you in trouble, if not in jail, at least sued. Lets say grandma put you on the account “just in case”. It is still not your money. While the bank is authorized to allow you to remove it, the disposition of those funds really have to be for grandma’s benefit and not those who are left here on earth when she passes. She put you on the account because she trusted you, and when we start hearing the word “trust” all kinds of duties attach.

3) Joint Tennant with Right of Survivorship. Lets say grandma opened this account with you and personally, not the bank employee, checked the box that says this or shortened to JTWROS. That is a will substitute that means when she dies the money is yours without probate. Note the timing. It will not be a defense to say that you will inherit this money some day anyway through this non-probate transfer. What if she needs the money before then?

I suspect there are more reasons not to do this but the post is getting too long. You may have good reasons to avoid probate, but this approach is too dangerous. In layman’s terms, don’t take things that don’t belong to you. You don’t have to go to law school to know this. I think we all learned this in kindergarten.

“Do it yourself will kit” – the driver is asleep at the wheel

Why should anyone hire a lawyer to draft a will? Because drafting it yourself is like driving on the freeway on your first day behind the wheel.

That man contemplating death and writing his own will drives outside of the lines weaving from centerline to shoulder, throwing gravel and screetching tires after his funeral, when reasonable minds differ on what he intended. And, as he is out of the blue and into the black, he cant come back, the only mind that matters is that of the judge. Along for the ride in this inexperienced drivers vehicle is the whole family.

Do you drive a car on the freeway before getting accustomed to car in the neighborhood? How many will writers have litigation experience and know how things really work in court? I mean real court, not the courtrooms on television.

There are perfectly straightforward software packages out on the internet that seem logical and can convey the intent of the will writer well. In that case the will writer is someone in a distant state trying to make a buck out of volume sales without a care really about the end user. Sometimes these things work out.

Sometimes they dont. What if the actual end user of the software wants something other than is in one of these cans? What if there is any complications at all, like a step child, or you have specific ideas about a trust for children or grandchildren that may or may not work in your jurisdiction? What if the national canned will draft is just wrong about the laws in your jurisdiction? The laws of devise and descent are notoriously local.

Hire someone to at least look at what you have written for your last act on earth. The local lawyer will at least know where the speed traps are.

There is Nothing Simple About a Simple Will

I hear this every day, “we just need a simple will”. Listen up folks this is not that Jeffersonian America where we all exist as simple farmers who gather after the harvest is in to debate how our democracy should function then vote before planting time.

That simple America is what we all want but we just do not have. Any one with a retirement account of any kind and children needs to talk to a lawyer about whether or how this yet to be taxed asset should be handled in some kind of an estate plan that recognizes the reality of what you are leaving your kids or your spouse whether you know it or not.

Often I learn there are preset designations in retirement plans made part of the fine print of an employment contract you never read that takes control of the disposition of your retirement at death no matter what your Will says. Sometimes you can change it. Sometimes you can’t. Probably better to know when.

But we don’t want to know. Nor do you want to know what happens with the time share in Hawaii can’t be moved by the probate court in the other 49 states to the people you name in the will and a second probate might need to be filed there.

You really don’t want to know when and when not to use a will substitute like Revocable Living Trust, if you believe  you “just need a simple will”.

When I use the term “myth”, I don’t mean something that is false or a lie. When I use the term “myth” it is in the same spirit as the Greeks. A myth is how we explain ourselves. It answers the “why” in “why are things the way they are?”.

We want to live that Jeffersonian myth of plain folk who do the work of living and loving until they die and leave the world a better place for their kin and friends than when they arrived. Diving into the reality of how a marriage changes things, a divorce really changes things, that child you never adopted but raised changes things from how you would want it to be, or how your hard work will be bled away by a tax scheme that seems to punish your industry, all tends to make a mess of the American Myth.

“Besides, lawyers are expensive and we can’t afford it”.  Yes you can. My fees are flat for estate planning to encourage problem solving before there is real cost. If you want to see expensive, try estate litigation which heats up when the will isn’t right. That is where I more or less make a living, cleaning up the messes left by those who sought to live that American myth that we are a simple people without complex problems.

Ok, that’s enough for now. I gotta go.