Solo Attorney Estate and Succession Planning: Overcoming Inertia

 

The Solo Attorney’s Plan for Succession, Disability and Death: part 1 of a series.

Overcoming inertia can be difficult!  [In case you’re wondering, the picture at left is of Newton’s laws, I’m thinking particularly about Newton’s First Law about overcoming inertia.]  Let’s face it, procrastinating has a bad rap – but it isn’t always a bad thing.   But if you are a solo attorney and you don’t have any arrangements in place for someone to be able to assist in the event of your sudden incapacity or disability or death, you might want to consider thinking about what might happen to your spouse or loved ones if something happens to you.

On February 11, 2013, I presented a continuing legal education (CLE) program on the topic “Death of a Solo, Death of A Practice: Planning for the Inevitable. “  I’m pleased to say it was well-attended and I got many positive responses from colleagues.  Apparently this topic is on a fair number of my colleague’s minds.  There are several layers of challenges for a solo in figuring out a plan.  In this series of blog posts, I will talk about some of those challenges and some ideas about how to work through them.

I think the biggest obstacle for many people is the very first one, and I used a slide entitled “What Me Plan?” to pay homage to Alfred E. Neuman  (of Mad Magazine fame, in case you’re too young or that part of your memory is compromised) and keep this whole question on the lighter side.  The idea for the program was of course not original.  Back in 2010, I worked on and presented at a daylong CLE program (August 2012, “Planning Ahead”) for this same topic for solo and small firm types.  Last summer at the Elder Law Retreat in Vail, I presented a couple  of the forms I used as materials for the Feb. 11 program as a “special bonus” to my ethics presentation.  What prompted me to propose this topic to the lunchtime CLE series was an article I read in the January ABA Journal  about the terminal illness and death of a sole practitioner and the impact it had on a friend’s life and law practice.  The story is essentially about community, but is also a cautionary tale about being realistic about our own mortality and making a plan for uncertain certainties (when we will die)  and certain uncertainties (whether we will be incapacitated or unable to practice law for a short or long term period).  The vast majority of colleagues I speak to (including those practicing trusts & estates and elder law) do not have any documentation in place.  Most of us have a vague sense that having a plan would be a good idea . . . .  but how to get started and how to go about it?

I think this procrastination proves that lawyers are people first and lawyers second – most people don’t have wills and durable powers of attorney because they procrastinate and for a few other reasons, but that’s another topic.  I am concerned in this post with getting over the initial hump, that inertia of the status quo of not having anything in place.  Death denial plays out in many powerfully subtle ways, and procrastinating facilitates its continuation.  These posts will be about getting past the first obstacle and allowing ourselves the space to consider our own vulnerability and mortality and doing this in the context of what we value in our lives, what is important to us and who we want to protect.  Considering what is at stake is one way of looking at it, but for every individual there is a different perspective.  The tricky thing about this kind of planning is – we never really know whether it is necessary . . .  until it is too late!

This gets back to the whole idea behind estate planning as a positive and meaning-making human endeavor.  I’ve addressed some of the therapeutic aspects of estate planning in a previous post here, but I think some of the points about fear of death are worth repeating – these are some elements of people’s fear of death that psychologists have described:

  1. They can no longer have any life experiences;
  2. They may be uncertain as to what will happen to them if there is a life after death;
  3. They may be afraid of what will happen to their bodies after death;
  4. They realize they will no longer be able to care for their dependents;
  5. They realize that their death will cause grief to their relatives and friends;
  6. They realize that all their plans and projects will come to an end; and
  7. They may be afraid that the process of dying will be painful.

When we think about our own mortality we can see beyond the basic fear of the unknown and think about how our death is connected to our life.  I think this is where a fear of death is really more about a fear of life, of life’s inherent uncertainty and fragility.  What if we could start practicing a little bit every day, by recognizing the uncertainty of the future – any knowable future, by looking at what is and being grateful for it?  Now I’m thinking about another blog post or two where I’ve cited Dr. Ira Byock’s four things to say to others while we are alive, but particularly useful when we know our time is limited:

please forgive me

I forgive you

thank you

I love you

If we could start saying these things while we are alive, maybe it would be easier to consider our own mortality and examine and embrace the meaning of our lives.  This is where the community element comes in.  The other part of my message for the recent CLE was that solos are not alone, we are part of a community.  We can help each other talk about what our concerns are about planning, addressing our own individual needs and concerns, along with finding a colleague we can trust who can assist us in the execution of plans in the event of our disability or death.  As members of the CBA solo and small firm community, we can share our ideas, experience and strength in ways that help us as individuals (and our families and loved one) and foster our community.  In future posts I will be sharing some more ideas about getting started and making progress toward a plan, as well as some of the documents that solo attorneys can use for their document “infrastructure.”

 

©Barbara Cashman     www.DenverElderLaw.org

 

Death and Taxes, Sure . . . . but what about Death and Facebook?

I liked this link I found on mashable  thanks to the Wills, Trusts & Estates Prof blog I subscribe to.  Entitled “How 1 Billion People are Coping with Death and Facebook,” I think the article is more about how Facebook provides both a new means of grief expression and support, and also another avenue for death denial. . . .

I think of my dear late friend Matt, a collaborator on several bar association projects with me, as well as my only ever “tech support” guy.  He is still with me on Google +, which I find comforting.  Where do we go after we die?  That is one of the “big questions” in life. . .  This post is concerned with a slightly narrower issue that looks at the different levels of “immortality” online.    Speaking of immortality, and what you might want to be remembered for, here’s a link to a story about Billy Ray Harris, a homeless man in Kansas City, who returned a diamond ring to a woman who mistakenly put it into his change cup.   Just a bit of gratuitous feel-good stuff for this post.

A law blog I check periodically on digital estate planning issues is www.digitalpassing.com .  The blog’s author, Jim Lamm, posted on Feb. 18th about the digital afterlife from a legal perspective.  There are several commentators who are dealing thoughtfully with these questions that are breaking new legal ground.

Colorado doesn’t yet have a part of our probate code amended to consider access to and rights in digital assets for agents under durable powers of attorney, those acting on behalf of incapacitated persons and personal representatives of decedent estates.  All of these folks would be acting as “fiduciaries,” and  there is effectively a gray area surrounding rights, responsibilities and access to property and accounts.  The Uniform Law Commissioners, the same group who brought us the Uniform Power of Attorney Act (adopted by the Colorado legislature and in effect since January 2010), are working on this problem.

What makes these questions particularly challenging are twofold: the practical difficulties relating to finding someone’s password or getting around their encryptions (for some this is extremely difficult), and couple these with an interesting combination of contract law, state law, and federal  law relating to the internet, using data of another and privacy – and this can be quite a challenging mix!  I’m not going into those services which promise to keep your passwords safe, allow for some kind of a plan for internet mortality in the event of a person’s demise; or one I saw recently that promises to wipe your internet footprints.

Okay, so what about other online presence and persona besides Facebook, what about writings on blogs (sometimes these become books) and other intellectual property? Famous authors can retain licenses for the original works, but the bigger issue for some is how long does that legally protectable interest or copyright last?  Here’s a blog post about a federal court proceeding by a scholar against the Estate of Arthur Conan Doyle (author of Sherlock Holmes).  Copyright law is governed by federal  law, and there have been a few authors of works who were obscure and penniless during their lives but won posthumous acclaim and their estates became wealthy.  Copyrightable works include writings (literary works), music, choreography, audio and video (or other “moving pictures) recordings. Under current law (the 1976 copyright act and the Sonny Bono Act) it looks possible to extend copyright protection for seventy years beyond the life of its author or creator.  This is where Mickey Mouse, Superman and lots of other famous characters work their way into federal laws. . . .  Protection is extended to “original works of authorship fixed in a tangible medium of expression from which such works can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.”  17 U.S. Code sec. 102.

Digital assets in the probate context (here I mean as used by an agent acting under a power of attorney or by a personal representative in a decedent’s estate) are at the intersection of federal and state law and can involve contract and property rights along with potential criminal implications when a person acting on behalf of another may be violating the agreed upon terms of use for a particular account.  Stay tuned for future posts on this timely and interesting topic.

©Barbara Cashman     www.DenverElderLaw.org

The Heart and Valentine’s Day from an Estate Planner’s Perspective

 

                      “Life is never made unbearable by circumstances, but only by lack of meaning and purpose.”

― Viktor Frankl

Valentine’s Day is all about love, chocolates, flowers, etc., but I won’t get into any of its historical (or commercial) origins.  What has happened to the entire month of February, thanks to Valentine’s Day, is that there is a focus on the heart for the entire month.  The heart as in that blood-pumping organ that keeps us alive. . . . Yes,  the Centers for Disease Control have declared February American Heart Month, an opportunity to increase awareness about heart disease and its prevention. My personal favorites in this regard are dark chocolate and red wine, but don’t get me started on chocolate.  The American Heart Association has a particularly helpful page for women to recognize signs of a heart attack.  The symptoms for women are qualitatively different from those of men.  Okay, so if we’re talking about the heart, we’re not far off from the life-sustaining liquid it pumps throughout our body: blood.  February is also blood donation month.  Really – you can confirm it here.   If you are interested in donating blood, Bonfils Blood Center has several locations throughout the metro area, making it easy to donate. You can go on their website to determine your eligibility and where to donate.  Okay, so what does any of this have to do with estate planning?

Taking care of yourself through healthy diet, exercise and those sorts of things generally play out into better quality of life. And donating blood means making a contribution of  life-sustaining and life-saving blood to unknown community members.  Both are good for the heart and make us feel better.  I think the same can be said about living on purpose and making plans for incapacity (a certain uncertainty) and death (an uncertain certainty).  Having the “difficult conversation” about your health care choices and wishes – in the event you are unable to communicate or are incapacitated – can help inform the person planning as well as their loved ones about what is important in life.  In last week’s vlog post I talked a bit about the process of deciding and some of the resources available.  A primary reason I focus my law and mediation practice in estate and elder law is to help defy the taboo of talking about death.  Death is part of life, and just as a life has meaning, so can death.

“A good death does honor to a whole life.”

                                             ― Petrarch

So what about the fear of death?  Talking about it means getting past seven of the realizations that can lead, according to psychologists, to a fear of death.  They include an individual’s realization that:

  1. They can no longer have any life experiences;
  2. They may be uncertain as to what will happen to them if there is a life after death;
  3. They may be afraid of what will happen to their bodies after death;
  4. They realize they will no longer be able to care for their dependents;
  5. They realize that their death will cause grief to their relatives and friends;
  6. They realize that all their plans and projects will come to an end; and
  7. They may be afraid that the process of dying will be painful.

These are from an article I blogged about last year on Therapeutic Jurisprudence.  I recently came across an excellent short article in the Dec. 2012/ Jan. 2013  NAELA News magazine by Tani Bahti, entitled “Bury the Top Ten Myths About the Dying Process.”  Bahti, an R.N. and end-of-life consultant, gives an excellent list debunking some of the ideas we hold about the dying process.  I tend to think that much of our alienation of death is a recent phenomenon, ushered in with advances in medicine, pharmacology and longevity as a whole – many of us tend to view death as a medical problem, a failure of our system of keeping people alive for as long as they wish.  When so many of our loved ones die in hospitals, we often feel powerless and out of control, that there is nothing we can do.  But of course there is. . . .

Have the conversations, think “the unthinkable,”(death comes at the end of life)  and ponder the imponderable (whether there is part of us that survives death) and maybe these will enrich your life in some unforeseen way, or at least make it easier for your loved ones in the event something happens to you and – without that conversation – they might have no way of knowing what your wishes are.   Honor your heart and the hearts of others.

©Barbara Cashman     www.DenverElderLaw.org

 

 

Two-Minute Flyover: Health Care Planning in an Age of Longevity

Two Minute Flyover Video: Health Care Planning in an Age of Longevity from Barb Cashman on Vimeo.

Two Minute Flyover: Health Care Planning in an Age of Longevity

I decided on the topic for this vlog post after a post on a listserv I belong to inquiring about advance health care planning documents.  And there was also a recent comment in one of my LinkedIn  groups asking about why so few people engage in advance planning regarding health care matter.   The topic is a bit of a reprise to this post about end of life decision making but I wanted to cover the basic distinction between a medical durable power of attorney and an advance directive.  In this vlog post, I refer to a couple good resources for assisting people in making health care choices that are consistent with their values.  Here are some links to those documents:

University of New Mexico Values History document available in pdf format here

This American Bar Association’s Commission on Law and Aging’s page includes a pdf of the Consumer’s Toolkit for Health Care Advance Planning

The American Bar Association’s Legal Guide for the Seriously Ill (put together with the National Hospice and Palliative Care Organization) can be downloaded here