The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 2

At the Denver Tea Room

At the Denver Tea Room

This is part two of the previous post about some of the obstacles as well as rewards of solo and small firm lawyers getting their disability and death plans in place.  In the first part I mentioned I was posting this due to my participation in the American Bankruptcy Institute’s Rocky Mountain regional conference.  Next month I will be putting on a similar program for the Aurora Bar Association.

Let’s dive in with (a review of) Kipling’s serving men –

I keep six honest serving-men

 (They taught me all I knew);

Their names are What and Why and When

 And How and Where and Who.

 . . .

The Elephant’s Child, by Rudyard Kipling.

We’ll begin where we left off, with the fourth serving man. . . .

 Here’s the fourth man, HOW . . .

Well, you can always start with a simple plan, which involves another person (the sixth man is “who”).  It’s best to start with a person in mind to help you (known in the appendix as the “assisting attorney”) because it’s often easier to get going with this plan if there are two of you who are holding each others’ feet to the fire, so to speak.  If you can’t think of another attorney with whom you can get started, try a request on the BR listserv or ask on the SSF listserv.

Don’t let the fear of confidentiality and conflicts (as in the CRPC variety) stop you in your tracks.  Any arrangement to manage or take over the lawyer’s practice must include appropriate protections for client confidentiality. The assisting lawyer taking over must beware of conflicts and must safeguard confidential information. The assisting lawyer should be introduced to or familiar with office staff. Staff or family members of an affected lawyer need to know how to contact the assisting lawyer in the event of disability or death.  They need to know where any agreements, powers of attorney, or other planning documents are located. Family members and the PRs should be advised of the arrangements so they know of their existence and any important provisions. Instruction letters could prove invaluable and of course an office procedure manual would be ideal to help locate and decode the affected lawyer’s system.

A more advanced plan and even the super deluxe plan aren’t rocket science as such (unless you have an engineering background).  Lloyd Cohen’s ABA book Being Prepared is very useful in this regard AND it’s available from the CBA’s lending library.

 Enter Kipling’s fifth, WHERE.

This one is up to you! Meet somewhere with your law partner, a trusted colleague, a family member or office staff at a place and time where you can get started on the difficult conversation that leads to . . .  the documents.  The documents need to be kept in a safe place where your assisting attorney  can have access to the documents in the event they must be used or held by a third person like an escrow holder.  At a minimum you will need an easily understood and complete filing system with access by someone who has some familiarity with the system.

   And last but not least, there is WHO.

This can be a very challenging detail – on whom can you rely for this type of assistance?  Will it be asking too much of the person? These are not easy questions to answer, but many of us deal with these questions regularly in representing our clients.  The arrangement you make with the assisting attorney should establish the scope of the assisting attorney’s duty. Will the assisting attorney be the personal attorney for the deceased or incapacitated lawyer? This can be an important distinction. If the assisting attorney personally represents the deceased or incapacitated lawyer, in the event he or she discovered malpractice or ethical violations in any matters, the assisting attorney would not be able to inform the clients and also the assisting attorney could not represent the clients. If it is intended that the assisting attorney take over representation, then he or she would not be the personal counsel for the deceased or incapacitated attorney and must obtain each client’s consent to representation.

The compensation of the assisting attorney should be addressed, as should the matter of staff support to assist the assisting attorney in performing his or her duties and arrangements to pay for these services.  If you are looking for more inspiration about the intersection of (1) what to avoid by planning and (2) how a community of lawyers came together to help one of its own, read this 2013 article from the ABA Journal.

Okay, we’re finished with Kipling’s serving men, and I hope they have helped demonstrate how simple this process can be (note: I did not say it was easy).  Just in case you need a little extra ethics ammo to get you motivated, take a look at the American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 92-369, December 7, 1992, Disposition of Deceased Sole Practitioners’ Client Files and Property, which provides:

To fulfill the obligation to protect clients’ files and property, a lawyer should prepare a future plan providing for the maintenance and protection of those client interests in the event of the lawyer’s death. Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention, and who should notify the clients of their lawyer’s death.

Many state bars require such plans of solos (our neighbor Wyoming, for example).  Colorado does not – let’s not give OARC a reason to require this of us – plan now!  If you are looking for more ideas by way of checklists, LDPOAs, casualty letters, and other documents associated with this planning, and you are a solo attorney and have a question about my forms, get in touch!

©Barbara Cashman  2015   www.DenverElderLaw.org

The Importance of Solo and Small Firm Attorney Disability and Estate Planning- part 1

My Old Girl

My Old Girl

Well, it seems my Solo Attorney Estate Plan posts are few and far between!  Strange when I consider that I have usually presented on the topic at continuing legal education (CLE) programs at least a couple times a year.  I’m always updating my materials (and looking for more cartoons about death and dying) and am particularly grateful to my colleague Mark Masters, a community resource for trust and estate lawyers who is of counsel at Glatstein & O’Brien. Mark was kind enough in December to take a close look at my forms that I use in my CLE presentations to get the planning going.  Though I have shared these forms over the years with dozens of attorneys, I am always looking for comments and suggestions.    I will be presenting on Friday at the ABI Rocky Mountain Bankruptcy Conference, January 23, 2015 as a panel member of Consumer Workshop III: Practical and Ethical Issues in Succession Planning. 

The other panel members include Charles “Chip” Mortimer, Jr. from the Office of Attorney Regulation Counsel, Colorado Supreme Court, Mark Dennis, of Dennis & Co., P.C. and our moderator, Nancy Miller, of Nemirow Perez. 

As an estate and elder law attorney, I am familiar with detour, dissolution, disability and death.  I am one of a small number (as far as I can tell) of attorneys who has a plan of some sort in place.  Fact is, most people put off thinking about these things and making plans.  I think it proves that lawyers are people too.  What are the barriers to making a plan?  Well, there are many.  There is the first hurdle of the emotional issues we face in coming to terms with uncertain certainties (death) and certain uncertainties (some catastrophe or a disability of a physical or cognitive variety).  This freezes many of us right in our tracks.  It may be the biggest reason that most people die without any estate plan in place.  Perhaps you have heard the estate planners’ adage about the people most in need of estate planning (people with young children and small business owners) being the least likely to have it?  Many of us, especially the solo and small firm types, have kids or family members who depend on us and our law practice as a source of income.  We need to make our own plans.

I don’t like to scare people, and so that is one of the reasons I share my forms – it’s kind of a “hey kids, try this at home” approach. For this post I will begin with the end in mind – yes, the plan itself, and a few documents that are must haves.  Where to start? Well, I recommend Rudyard Kipling’s six honest serving men to help overcome that most potent physical and psychological force – inertia:

I keep six honest serving-men

 (They taught me all I knew);

Their names are What and Why and When

 And How and Where and Who.

 . . .

The Elephant’s Child, by Rudyard Kipling.

Let’s start at the beginning with WHAT. . . this is the most important part to begin with.  What do you want to happen in the event of your disability, incapacity or death?  You as the person making the plan will sometimes be referred to as the planning attorney or the affected lawyer.  I know, the second moniker doesn’t sound so nice.  The person you have selected to help you will be known as the assisting lawyer.  Here are a few questions to get the ball rolling.

  • What will happen if you become disabled? Begin with a conversation with another lawyer or perhaps a staff member about how to make arrangements for you, a/k/a your law firm, as an affected lawyer or law firm to continue, close, or transfer your practice on your behalf.
  • What can you put in place to cover your disability? Have appropriate powers of attorney in place so that your assisting lawyer(s) can step in if needed to run your practice. They will need to be able to sign checks, handle the COLTAF accounts, manage employees, and generally conduct your law practice business on your behalf.
  • What will happen to your law practice upon your death? Consider naming at least one personal representative in your will who is a lawyer to be charged with the responsibility of selling or closing the practice.
  • What can you do now that could help your assisting attorney? Maintain an easily understandable system of client records to help the assisting or successor lawyer to carry out his or her responsibilities.

Sure, there’s the detail of how your assisting attorney will get paid, but don’t let that detail hold you back!

 

The second serving man is WHY.

Think of this planning as putting in place a management plan.  Even if you don’t have a business plan, let alone a management plan for your current practice, it is imperative that you get one for these “if” and the “when” scenarios.  Think of the plan as putting together a management team.  They will manage according to the plan you have put in place.

Whether you have a plan [or not] should be a conscious choice.  I know this sounds familiar to all of you reading this because, well . . .  many of us do this planning for a living and some of us do litigation when there wasn’t a plan or a badly constructed plan.  So, at the risk of singling you out as your own cautionary tale, wouldn’t you rather make a conscious and deliberate decision?  It doesn’t have to be perfect and it can be changed and updated as needed. What it is that fits your goals, personality, your business plan and your longevity and estate planning goals? Most of us would rather be in charge of deciding this and not leaving it to be a burden on someone else.  Here are a few “why” things to consider – just in case you forgot that you have to think about the same things as your clients:

  • Longevity planning (for incapacity or disability to avoid guardianship, conservatorship or OARC appointment of inventory counsel)
  • Making a will or trust that addresses or has provision relating to your law practice
  • Tax issues
  • Providing for some financial management in the event the firm can go on without you
  • Caring for and protecting beneficiaries with a stream of income or other benefit they might be depending on
  • Considering carefully and choosing your key people: agents, assisting lawyers, personal representatives, trustees, etc.
  • Maintaining privacy and confidentiality during times of uncertainty or transition
  • Ensuring there is no breach of fiduciary duty owed to clients by the lawyer or law firm

 

Kipling’s third serving man is WHEN.

There is no time like the present!  Some would argue that there is no other time besides the present, that the rest of it is . . . theoretical.  So get busy and start now.

That’s all I can fit in this post for now. . . .  stay tuned for the continuation!

©Barbara Cashman  2015   www.DenverElderLaw.org

 

People Die Every Day, It’s Perfectly Safe – Why Would I Need a Guide?!

Side view of Navajo Twins, Bluff Utah

Side view of Navajo Twins, Bluff Utah

This is a picture taken outside my favorite fry bread restaurant, in Bluff, Utah.  The Navajo Twins, the rock formation depicted (and name of the restaurant), is named for the hero monster-slayers from the Navajo creation story.   Their story has also to do with the coming of death.

Some of us question basic notions around things like life and death.  Others, well . . . not so much.  Historically, we have symbols, guides, talismans and other “companions” who have accompanied us on the journey from life to death.  Whether you view it as a dark path of mystery or simply as a “lights out” simplicity of sorts, death is the great unknown.  Some of us feel more comfortable with a guide or at least a worthy companion for the journey.

Who will help us along our journey, who or what will guide us along this unknown path, the strange terrain of transition that is so foreign to us and around which there is much anxiety and fear?  Is there some post-modern guide for our purposes here?  I have used several pictures from Rochester’s Mount Hope which depict angels, who are probably the most readily recognized psychopomps in our culture, even if they seem, for many of us, outdated.  The most recognizable psychopomp in literature is Virgil from Dante’s Inferno.  Virgil conducted Dante through the nine circles of hell.  Nowadays there are so few authorities recognized for such a role as psychopomp, there are many different names for such roles or services.  In many traditions, coyote is a psychopomp.

An online dictionary offers this concise definition: psy·cho·pomp, ˈsīkōˌpämp/ noun

  1. (in Greek mythology) a guide of souls to the place of the dead.
  1. the spiritual guide of a living person’s soul.

As indicated above, the origin of the term psychopomp derives from Greek mythology, and denotes a spiritual guide of souls, traditionally to the place of the dead, but often also as a guide at the threshold of other mysteries as well.  For the alchemists, this person was Hermes Trismegistus and for archetypal psychology is often expressed as the magician. [Here I am relying on Carol Pearson’s 1991 book “Awakening the Heroes Within, at 193-208.]   In Jungian psychology, the psychopomp is the mediator between the realms of the conscious and the unconscious.  Sometimes a simple question is asked of us and this changes everything, like a missing puzzle piece brought into one’s life, which is no longer merely an intellectual question.  I’m thinking of the question posed to Parsifal in his search for the grail, “whom does the grail serve?” which caused his lost soul to realize that his divine counterpart (the grail king) had been living within his castle all along.  This is, as Monika Wikman describes it in her 2004 book “Pregnant Darkness,” (at 182) is mystery that is brought to life, embodied and is the carrier of the connection between the human ego and the divine self.

Going back to the beginning of the beginning as it were, my favorite story is the tale of the journey of Inanna, the Sumerian goddess of heaven and earth, to visit her sister Ereshkigal, the goddess of the underworld.  Sylvia Brinton Perera’s 1981 book entitled “Descent to the Goddess” is a beautiful rendering of this path of transformation and a woman’s inner journey by a highly respected Jungian analyst.

Let’s face it, most of us don’t remember these stories about questions, transitions and guides, or we had no use for them, so have we simply managed to forget the psychopomp and why a culture would have found one useful in the first place.  Perhaps that is the case.  It is probably more likely that in addition to forgetting the purpose of such a guide, we have transformed the notion, the metaphor, to fit our modern and post-modern necessities.   So, enter the psychopomp of the extra-terrestrial!  We still venture to the land of imagination and fantasy, to the strange, mysterious and uncharted worlds.  The command of Star Trek’s Captain Kirk to engineer Scotty “beam me up” comes to mind.  But if the angels of yore have become outdated in the modern and post-modern expression of technology, then it strikes me that the extraterrestrials are our more fully mechanized and measured angels.  The psychopomp is after all a threshold conductor, not something that is out there but is part of a relationship we have (each of us has) with the unknown.  In our space exploration, aren’t we essentially looking for relationship, to help us inform ourselves further about who we are, in relationship to _X_ (the unknown)?  Our fascination with UFOs is also about our relationship with mystery and that sought-after psychopomp.

Maybe we are reaching a point of unbearable tension between the progress of technology and what it is for – read: the expansion of consciousness.  What is the name of this new place and what is the human role in it?  Is it fully mechanized, an objective reality apparent to everyone  . . . .  or is it something or someone that has soul? Well, I think the new place is the latter because I tend to side with the ancient Heraclitus on this turf, that all the world is merely a cover, a means of thinking about boundless soul.  This is one of the reasons I think it is particularly helpful that we have people like Megory Anderson, whose book published in 2001, Sacred Dying, explores the re-animation of embrace of rituals surrounding the end of life, dying, death and mourning.  When we can engage is a ritual that is meaningful to us, we can discover our intention to be present – to ourselves and to the dying and others present, in ways that connect us with ourselves and the other, as a balm for the rampant anxiety and alienation that is so commonplace in our end-of-life situations in our post-modern Western, north American culture.

©Barbara Cashman  2015   www.DenverElderLaw.org

Part II of Law and Culture’s Response to Death: Where Do We Put Our Dead?

centennial estate planning

Ketring Lake at Dusk

 

This is a continuation of my previous post about “where do we put our dead?” but I am in fact beginning at the end (depending on how you look at it of course!) with the aspect of dying and how this factors into our death denying culture.

In chapter 12 of The Hour of Our Death, entitled “Death Denied,” Philip Aries introduces the chapter with “the beginning of the lie” in which he draws upon ample support in literature for this new development and the beginning of the medicalization of death, which of course persists today.  Looking at Tolstoy’s Ivan Ilyich written in the 1880’s, Aries notes the similarity of the medical lie that cheats one out of one’s own death with an experience he recorded of a priest dying in 1973.  He notes next the progression of the denial into what can be considered many aspects of its present states – the developing and deepening “death taboo” as described by the Englishman Geoffrey Gorer in 1963 (Aries at 575); its emphasis on discreet funerals, a certain indecency of mourning; and as the unwillingness to speak about the inevitable deepens, there enters the triumph of medicalization – the ultimate in estrangement from and incapacity to reckon with one’s own death.

I’m thinking also of another work, this one by B. Hayslip, Jr. and C. Peveto, “Cultural Changes in Attitudes Toward Death, Dying and Bereavement,” (2005: Springer) in which the empowerment and disempowerment choice is presented squarely to the patient in the medical setting.  The question examined included three with widely varying responses, which were further broken down along ethnic/cultural affiliations among Americans.  Most of the respondents stated they would want to be informed by a doctor that they were dying, while fewer responded that it was as important for others, such as family members, to be informed.  The most interesting number was the very small – 4-7% of respondents who related that they had told another person they were dying.  Hayslip and Peveto at 7, 114-15.  Here there is more than ample evidence to let the medical establishment do the “heavy lifting” as it were, relating to communicating a person’s imminent demise.  Age and ethnicity play important roles in how a person, as a member of a community views illness, mortality, old age, dying and disposition of a body and the grieving process attendant to that.  Id. At 78-84.

So with the medicalization of death we have other factors, whether they are causal or correlative is a question for social scientists to research.  What was once a basic fear, as writers like Ernest Becker put it  – the fear of death – has now become complicated with the alienation attributed to the medicalization of the dying process and our estrangement from it as a natural process, as part of life.  The fear is complicated now by an unspeakable anxiety which makes the fear into something much bigger and more complex than it is.  Of course, the medicalization of death is not a factor in death denial in many more traditional cultures and there are important developments in our country relating to the backlash against all of the medical intervention (but then that is another topic!).  Bottom line for my purposes here is that the medicalization of death has contributed to our sense of powerlessness and alienation from our own death and the death of others.  You might of course observe that the sense of powerlessness over death has always been with our kind and I would of course agree, but the alienation and its particular form is both a modern and post-modern phenomenon which I find particular troubling and symptomatic of a greater loss.

Finally, I will take a look at the so-called “green alternative” to burial: cremation.  Both of my parents wished to be cremated and their cremains are inurned at Ft. Logan.  My challenge with cremation is that it seems to be a further extension of the alienation from death.  The body is dispatched to the funeral home or mortuary, which may or may not have its own crematory on site and if it doesn’t sends the body out to another facility for such purpose.  I am reminded of my late aunt’s comment “just cremate me,” which struck me as being similar to “just take out the trash.”  I loved my aunt and found the comment upsetting at the time, even if I didn’t have any qualms with her cremation following her death.  I can’t tell you how many clients I have talked to about cremation and the rather unique issues it raises that many folks have not previously considered during the past where burial at a particular location was the unstated choice for nearly all people.  What container will hold the ashes?  Where will they be kept?  Who will keep them?  What happens to them when something happens to the custodian of the cremains? While cremation affords many more choices than burial to answer these questions and uniquely express the deceased person’s wishes, more often these questions are never answered and people can get stuck with their ex-wife’s uncles remains. . . . !

I haven’t had the chance to watch this PBS series called Dying in America from 2004, but you can watch it here.  Crematory workers are not immune from graverobbing so to speak, a New Jersey funeral director was convicted of selling body parts, while a German crematory employee was allowed to keep the proceeds from some eight years of sifting through cremains for precious metals (to the tune of $800,00.00) because a court ruled that such property belonged to no one.

I guess the biggest issue I have with cremation is the anonymous disposal of the corpse.  The corpse is typically dispatched by strangers hired by the family and the operator of the incinerator is the sole witness to the final dissolution of the deceased person’s physical being.  Yes, it does hasten the ashes to ashes transition, but I have reservations about how the process is undertaken, as if the body as a container is deserving of very little respect.  I just did a search and found that there is a funeral pyre in Crestone, Colorado.  This makes the cremation a public event, as practiced by Buddhist and Hindus of today and a different choice for cremation.

So I’ll end this post with something a little more upbeat (perhaps).  Fresh off the internet . . . Here are the top ten “classic” (I read that as dinosaur) rock songs about death:

Keep Me in Your Heart by Warren Zevon.  I’ve previously posted a link to the youtube of this beautiful number, which Zevon wrote in the face of his own mortality (he had terminal cancer)

Knocking on Heaven’s Door (okay, I switched this fave of mine from another Dylan tune that was listed)

The Last Carnival by Bruce Springsteen (a tribute to two deceased members of the E Street Band)

The Wreck of the Edmund Fitzgerald by Gordon Lightfoot, a beautiful ballad that takes the listener back to a seemingly different time and a relationship which most of us don’t have with tragedy

The Show Must Go On –  by Queen. I watched this video of the meaningful song performed by frontman Freddie Mercury as he was growing progressively weaker with AIDS

Dancing with Mr. D – the Rolling Stones (drug overdose isn’t the only means mentioned)

In My Time of Dying – Led Zeppelin

Tears in Heaven by Eric Clapton

42 – by Coldplay . . .  okay, it’s not classic rock but it’s a band I really like and the number 42 happens to be, as revealed in The Hitchhiker’s Guide to the Universe, “the answer to life, the universe and everything.”

Don’t Fear the Reaper – Blue Oyster Cult (this was #1 on a list I found but I remember this from high school and all the vampire movies popular at that time, so it got demoted in my listing!)

©Barbara Cashman  2015   www.DenverElderLaw.org