Wills and Long Term Care Planning

 

When retirement assets are in play, planning for long term care concerns under a Will based plan can get complex.  Sometimes visualizing the interplay between different planning strategies is helpful.

LTC and Will PlanningLong Term Care Planning and Will Based PlanningLTC and Will Planning

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What does the Operating Agreement Say?

We interrupt our normal broadcasting to rebroadcast this interesting case law news flash! 
Can the provisions of an LLC Agreement avoid probate? Can it act as a Will substitute?  What does the Operating Agreement Say? 
Courtesy of Alan Gassman and Chelsea Bellew, from the “Thursday Report”, Issue 181, comes the following:
LLC Operating Agreement Can Serve as “Transfer on Death” Mechanism to Avoid Probate and Trust Interaction (Not to Mention Confusion and Uncertainty)
by Alan Gassman and Chelsea Bellew
In Blechman v. Estate of Blechman, 460 So. 3d 152 (Fla. 4th DCA 2015), the court found that the provisions of an Operating Agreement of a limited liability company allowed the Decedent’s membership interest to vest immediately upon his death. While the Decedent made provisions for the membership interest to pass to someone outside his family in a trust before he passed away, the court found that the provisions of the Operating Agreement were controlling. The provisions of the Operating Agreement were made to keep the company within the family and did not permit for a membership interest to pass to anyone else.
The Operating Agreement was executed in New Jersey and was, therefore, interpreted according to New Jersey case law. Minoff v. Margetts was a New Jersey case that permitted members of an LLC to use provisions in an Operating Agreement to control the disposition of membership interests when one member passes away. Following this rationale, the court found that the interest in this case vested in the two children upon the death of their father, according to the Operating Agreement, and that this interest was not a part of his estate. The trust had an amendment that provided for the interest in the LLC to pass to the Decedent’s girlfriend upon his death, and the court found that this instrument was subordinate to the provisions of the Operating Agreement. The provisions of the trust directly contradicted the terms and intent of the Operating Agreement. Therefore, the Decedent’s membership interest in the LLC passed upon his death outside of probate to his children and nullified the terms of the amended testamentary trust.
Specific language that was used in the Operating Agreement that was blessed by the court was as follows:
6.3 Death of Member
(a) Unless (i) a Member shall Transfer all or a portion of his or her Membership Interest in accordance with 6.1 or 6.2 hereof, or (ii) a Member bequeaths the Membership Interest in the Member’s last will and testament to members of the Immediate Family of the respective Member, or (iii) all such Membership Interests of a deceased Member are inherited, or succeeded to, by Members of the Immediate Family of the deceased Member, then in the event of a death of a Member during the duration of this Agreement, the Membership Interest of the deceased Member shall pass to and immediately vest in the deceased Member’s then living children and the issue of any deceased child, per stirpes.
The court noted as follows:
…not every instrument which provides for performance at or after death is testamentary in character…There is nothing in the statute of wills that prevents the creation of contract of a bona fide equitable interest in property and its enforcement after the death of a contracting party, even though the date of death is agreed upon as the time for transfer.
Do we now have an obligation to review every Operating Agreement that a client has involvement with to see whether inheritance rights and disposition may be impacted thereby? Do we dare use similar language in an LLC Operating Agreement that might distort an estate plan later when the client or their advisors are not aware of the provision?
Perhaps the following provision can be considered:
Upon the death of JOHN SMITH, his membership interest shall immediately pass to and immediately vest in his spouse, MARY SMITH, or in equal shares to his children, per stirpes, if MARY SMITH does not survive him, provided that the above shall not apply to the extent of any future provision of any Will or Pour-Over Will and Revocable Trust that might be entered into by JOHN SMITH, if the legal effect thereof would be to provide for a different disposition of his LLC interest, regardless of whether such LLC interest is specifically referred to or not. The determination of whether any such subsequently signed separate Will or Revocable Trust exists to facilitate such change shall be made by the Manager or Managers of the Company, in their reasonable discretion, and the Company shall be entitled to the distributions or liquidation entitlement rights to the successor owners of the membership interest to the extent of money expended to facilitate such determination.
Should we consider using similar arrangements for our clients, and, if appropriately used, will these avoid exposure to individual creditors of the deceased LLC Member? See our Thursday Reports from October 15, 2015 and October 22, 2015 for further discussion of this in the article entitled “Avoiding the Carnage Caused by Pay-on-Death Accounts.”
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Staying on Top of the Day

Staying on top of the day in a law practice can be difficult.  There are always a number of tasks to attend to.  I use a number of tools to try to manage my daily approach to practice as you probably do to.   I will use the next couple of posts to address several of these and will provide templates that you can use in your practice or build off of.  Today’s post is on the use of the daily journal.  Sounds thrilling – right?  But seriously, if you haven’t tried it don’t knock it.

The Daily Journal

Regardless of what you use in terms to keep on top of you to-do’s, a daily journal that gives you a place each morning or, as needed, to pencil in notes or reoccurring to-do’s can be helpful to taming your practice.   The simple act of taking a few minutes to write things down, rather than type them or dictate them, is to me and many others a type of mini meditation that can help focus the mind and relieve it of stress.  The template for my daily journal can be found at http://www.smiliegrogers.com/attorney-to-attorney.html, under the heading “Complex Planning Visual Aids and Practice Aids”. Although I have tried to keep my template to one page with an overflow second page, your template might be longer.  I  find that if I can get myself to focus on that one page I can achieve the most immediate results without spending and excess amount of time on journaling, which is not an activity that pays the bills.

“What’s important today” kicks off my template and probably like many others, mine allows for a quick task ranking  in a side column if needed.

The second topic of my template covers those matters that of lesser immediate concern.  There is a row of spaces on the left hand side for those lesser matters that I want to attend to today.  In the right hand column I have included a “Hatchling” list, where I can try to capture ideas that arise during the day (often during the drive to the office or during lunch when my mind is more relaxed) and return to them at a later date.   I have heard it said that 90% of what we think about is reoccurring.   Only about 10% of your ideas or thoughts on a daily basis are new.  Taking a minute to write down some of those items on the left hand column ( the reoccurring items of lesser concern) may give the mind space, or permission, to think about other things.   As a small business owner, I tend to think that part of what distinguishes my practice from others is that I give audience to that 10% and try to write them down.

In the middle of my template I have a place to note calls or notes that I want to record in a place where I can easily find them later.  If I need more space, there is always page two.

Least I forget that I am a small business and have to always consider how I am marketing my services, I include a space for trying to squeeze in a couple marketing goals each day. These goals might include calling a past client to check in and see how they have been doing – which is something that I often want to do but may find it difficult to justify on a daily basis if I don’t classify it as a productive activity (like marketing);  writing a blog post or Facebook post; working on an article or on part of our firm’s website; going to lunch in a new location (it is amazing what just getting out of the office can do for your business); working on a new practice skill or reviewing the websites of other lawyers/law firms to see what they are posting on their sites and the list goes on.

My template includes a “betterment” section, which is focused on reinforcing habits that I want to work on.  This mindfulness technique helps me focus on a daily basis on the person, the attorney, the father, etc., that I want to be.  Like my work, my life is a practice.  This small section of my template helps remind me of that and gives space for me to focus on this aspect self.

My template also includes some daily reminders of issues I want to touch on or update each day or every couple of days.  These little reminders help to create a consistency in my practice approach when I only have to be accountable to me.

Finally, my template ends with a place to record the joys of the days, as well as the grumbles.  My newest version of this template, which I have not shared, includes a place for me to record what I think is a proactive response to my grumbles.  I think this additional is important – as I tend to believe that our proactive responses to problems are what separates order from chaos.

My next post will address taming your desktop.

 

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Thinking, Fast and Slow – By Daniel Kahneman

Thinking, Fast and Slow – By Daniel Kahneman (Nobel Memorial Prize in Economics winner for his development of prospect theory along with Amos Tversky) should be required reading in every law school. It has been out for several years, so this “newsflash” is anything but.

This book is a MUST read for any lawyer but especially those lawyers that have to assist clients with decisions that involve loss and gains. If you have a favorite litigator in your circle of friends, this would make a great holiday gift.

For estate planners, this book is also a must read, as it dives deep into the human minds decision making process and explores our decision making process, as well as our clients.

Read it. Then plan on reading it again. I know I will.

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Recommended Reading for Estate Planners (and their Clients)

atul-beingmortal-cover3d1-319x479

Many estate planning and elder law blogs have recommended this book and for good reason.   I think it stands a good chance of changing the way estate planners think about their clients  (not to mention how doctors think about their patients) and can be a helpful way to get clients to really think and plan for their long term care and end of life.  If you haven’t read Being Mortal, read it.   You need to read it.

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Breathe New Life into Old Advance Health Care Directive Forms

Breathe New Life into Old Advance Health Care Directive Forms

 

Advance Health Care Directives – Statutory Authority (in Maine)

Title 18-A, Article 5 (Protection of Persons Under Disability and Their Property) Part 8: Uniform Health-Care Decisions Act (“Act”), which took effect on October 1, 1995. Section[1] 5-817.

Brief Overview

An Advance Health Care Directive (“AHCD”) is a legal document whereby a person can provide for instructions as to the health care (including end of life decisions) she wants to receive and appoint another person to make health care decisions, effective either immediately or at some future time, such as when she is unable to communicate her wishes.  As indicated above, an AHCD can be subdivided into 2 parts: 1) an advance instruction (A.K.A. a Living Will) and 2) a “Power of Attorney for Health Care”, which are distinct legal powers.

Advance Health Care Directives are important because they protect a person’s right and ability to make health care decisions even when they no longer have the capacity to make health care decisions.  Advance Health Care Directives also provide others (including family, friends and health care providers) an understanding of what the client wants to happen when they are no longer able (or willing) to make their own health care decisions, which may help family, friends and health care providers by reducing the tension and the emotional stress in making medical decisions for the patient.  They can also save time, money and bring families closer during a difficult time by providing a clear and well thought out plan.

Preserving Known Wishes and Reducing Stress

That, at least, is the theory but how effective is the form you use at preserving a patient’s known wishes or reducing stress?

A “Tool Kit for Health Care Advance Planning”, published by the American Bar Association, Commission on Legal Problems of the Elderly available on the web at http://www.abanet.org/aging/toolkit/ contains some practical step by step worksheets that can help an attorney and the attorney’s client (and the client’s agent) come to a better understanding about the client’s health care concerns and desires and may help preserve a client’s known wishes.   A customized AHCD might incorporate that tool kit by reference to ensure it is considered at the relevant time.

Similarly, a separate “Statement of Additional Health Care Instructions” to guide an agent might be made available to the client.   Recently I have developed such a basic Statement of Additional Health Care Instructions and I will use the remainder of this blog entry to overview that form.   First off, my AHCD form makes reference to the Statement of Additional Health Care Instructions and provides the agent with guidance as to where the most updated form might be located.    Such instructions are not going to be very helpful if the agent doesn’t know they exist or where to find them – right?   My AHCD form does not incorporate the instructions by reference (though it could if contemporaneous completed with the AHCD) as the instructions are intended to change over time – or at least give the client the ability to change the instructions over time.    The form is drafted with the execution formalities of an AHCD but states (as does the AHCD itself) that even if it is not executed with the same formalities, it is intended to act as a statement of the individual’s known wishes regarding health care matters.

The Statement of Additional Health Care Instructions I am currently using includes client prompts as to basic information, such as:

  • Health insurance information,
  • Current weight and height,
  • Prescriptions (and over the counter medications) being taken,
  • Known allergies or allergic reactions to medications,
  •  Recent medical ailments or procedures that the agent should be aware of,
  • Wishes as to independent living and care,
  • Wishes as to residential or nursing home placement,
  • Wishes as use of hospice (or not to use hospice),  and
  • Wishes as to words (topics) of comfort for family to focus on during the dying process

The Statement of Additional Health Care Instructions also includes the following prompts to elicit from the client answers to important questions to guide the agent:

  • What I enjoy most and what things/activities are important to me in life and which if I could no longer enjoy or do that would make living or struggling to live futile are:
  • If I was not able to do the activities I enjoy, these are the medical treatments that might be too much:
  • My biggest fears about getting sick, dying or medical care are:
  • Beliefs that guide me when I make (or should guide my agent(s) when he or she makes) medical decisions are:
  • Other wishes I want my agent or family to understand

Patient’s Rights and Effect of an AHCD on Right to Make Decisions 

The execution of an AHCD does not prevent a person from making their own health care decisions while they have capacity.   Furthermore, when a person needs medical care, they have certain rights, including the right to refuse care.  An AHCD does not take away that right.  Nevertheless, the execution of an AHCD or recorded answers on a form such as the Tool Kit for Health Care Advance Planning or in a Statement of Additional Health Care Instructions, may be the last opportunity for a client to make their wishes, beyond whether health care providers should take heroic measures or not take heroic measures, known.  After the patient loses the ability to communicate, agents, health care providers and family may be, like the patient, in the dark.  To me, that is not an acceptable place to position a client to be in.  Of course, the client has to want to participate in completing the Tool Kit for Health Care Advance Planning or a Statement of Additional Health Care Instructions.   That is a choice – but it is only a choice so long as it is presented as a choice or option available to the client.   Many clients may not want to participate – or may delay completing such a form.  These may be difficult questions for clients to face, for sure, but who are we trying to kid?  Life is playing hardball and there are no take backs, redo’s or rehearsals for the end.  Someone (perhaps the attorney) needs to give the client the option to take their planning one step further.

Thanks for reading.

Smilie Rogers, Esq.

[1] Unless otherwise indicated, all Section references are to the Maine Probate Code, Title 18-A.

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Going Solo and Running a Small Estate Planning Practice – Part VI

This week’s topic is “Going Solo and Running a Small Estate Planning Practice – Part VI”.

In Part I of this series I discussed some introductory thoughts about going solo, practicing with precision and practicing efficiently.  In Part II of this series I continued the discussion of “Practicing Efficiently” and began my coverage of “case management”.   In Part III of this series I continued the discussion of case management.  In Part IV I discussed some practical considerations surrounding opening a new law practice.  In Part V I skipped the planned topic to reflect on public speaking and the client meeting – or communication in general.  I likely will return to that topic in the future – stay tuned.  In Part VI I am going to round out this initial series on Going Solo and Running a Small Estate Planning Practice by briefly discussing “office systems” for the new attorney.

Office Systems

Office Systems is a general topic and some of what might fall under this topic has already been discussed previously.   However, I think it is helpful to consider the topic at the general level so that you are seeing the big picture when thinking about how you are going to run your new practice. By office systems I am talking generally about protocols and not about technical systems. This topic is about as fun as eating sawdust without the benefit of butter but hey – fiber is good for you!  It keeps you regular – right?  And in any practice or system, regular is good.

Office Systems

  • Manual File organization
  1. Alpha/numeric; or
  2. Centralized/decentralize
  3. Willy-nilly

Files – who needs files!  No one has files any more – right? Wrong.  We have computer folders and subfolders, working files, files for storage, vault files, scheduled long term shred files – and they are everywhere!  On the computer, in filing cabinets, on filing cabinets, behind filing cabinets, at home, in our desk drawers – everywhere!  Ever lost or misplaced a file?  Me? Oh- no way!  Never!  But… supposing I did, or might, it likely would have been due to some degree to a lack of file management system or backup.   Personally, in addition to all the various clients files, I have library files (where I sort and store the zillion articles, new releases, flowcharts, checklists, etc. that I come across in every day practice), document development files, “to read” files ( I have lots and lots and lots of those), and on and on.  I am sort of stuck with the organizational structure I started with, and while it could be better, it could be worse.  My point is that every attorney is going to build a number of files over time.  At the start, take some time to think about how you want to structure your filing system.  Future changes can be very difficult accomplish, so be careful how you start off.

  • Digital file organization

1. Establish a template master file with standard sub files that you use every time you open a new file.  Organize as you go along.  No one ever goes back and organizes a closed matter but if you ever find a need to reopen that file you may wish you had.

2. Consider establishing a file naming convention and stick with it. It makes later searches much easier.

  • Opening file procedure

I find this less of an important issue than I did when I was in a larger firm.  However, now that I am well into my small practice phase of life, I wish that at the start of my practice I had instituted a  file opening procedure that included a broader data gathering strategy.  Keeping track of client birth dates, or anniversary dates would have been an easy way to keep connected in a meaningful way.  Mapping my clients by their location may have given me interesting insight into where my clients live.  Collecting and analyzing referral data would also have likely have provided unique insights. While these and other data points could still be collected, finding the time to comprehensively employ this type of data gathering becomes more difficult.

  • Closing file procedures/retention/storage/destruction

It is easy to ignore such a procedure at the start of your practice but overtime it will become harder (and more time consuming) to bring this procedure on line and to implement it with respect to past files.  Your little office will quickly become a paper swamp and you will wonder how it ever got to such a state.  Being with the end and mind and come up with process for closing files, what your are going to (have to) keep and/or store and how you are going to dispose of the “residue”.

  • Protecting client information and client property (physical and digital files)

Things to consider

  1. Offsite storage
  2. Onsite storage
  3. Computer backup and redundancies
  4. Address protection from:
    1. Fire
    2. Water (moisture)
    3. Third parties
    4. Intruders – online and on the physical premises
  5. Document (file) destruction (shredding) procedures.

Tip: Make believe your system crashes and test your system and see how long or perfect recovery is.  Make believe if you had a break in and your hard drives where taken. Make believe you had a fire.  One day, sooner or later, one of these make believe events will likely happen.  What then?  Sure – it is difficult to cover all your weakness but you should at least be aware of them and have a plan of how or when you might be able to best address them in turn.

  •  Billing

Things to consider:

  1. Billing cycle (ad hoc, monthly, bi-weekly, end of project, etc.)
  2. What are you earning (day, month, quarterly, yearly)?
  3. What do you have to earn (day, month, quarterly, yearly)?
  4. What are you happiest earning (day, month, quarterly, yearly)? 
  5. How predictable are your earnings?
  6. If you are not making enough, ask the same questions about spending.  Then ask, which is easier to change to get you closer to your goal in the short v. long term. Ask what is the expected cost of change? What is the speed of that change? What is the predictably that change will have desired effect?
  7. Review your billing methods annually. Are you charging too much; too little; are your billing rates/methods attracting the types of clientele you want to foster?
  8. Methods of payment
  9. Interest on late payments
  10. Discounts for early/timely payments
  11. Collection policy (have one, even if it is that you don’t sue to collect and then stick to it)
  • Office manual/operating procedures manual

Things to consider:

  1. Standard procedures/policies for practice

No problem.  That shouldn’t take long!  Right! You could spend months doing this!  Don’t!  Ask or search around and start piecing this together over time.  It will take a lot of time but is worth the investment.  I am still building mine and fussing with this one or that one to adjust from what I am learning in my practice.

  1. Personnel policies/benefits
  2. Docketing, calendaring, tickler system
  3. Maintaining client contact – client retention:
    1. News letters
    2. Holiday cards
    3. Phone call follow ups
    4. In person visits
    5. Lunches
    6. Appreciation events
    7. Surveys
    8. Online recommendations
  • Accounting Procedures
  1. Bank account reconciliation
  2. Cash Flow analysis
  3. Accounts Receivables/Payables
  4. Expense Approval System if required
  • Develop a disaster plan development for your office, files, computer, etc.

 

  • Develop a plan for your illness, incapacity or death.

Think about your clients and what they are trusting you with.  Developing a plan for your illness, incapacity or death really is not optional. Many clients ask me about what happens to their files if something happens to me.   What would happen to yours?  Don’t your owe it to your clients to have a plan in place for this possibility?   Your plan should be fairly detailed: how to get into your office, how to access your computer or filing cabinets, where you store client files or property offsite, your codes or passwords for online accounts or service providers, who should take over your practice.

I think a disaster plan also contemplates keeping a current task and/or deadline list too. While I find it helpful to use a task list in my practice, I am always mindful that if something did happen to me that it also needs to be complete enough to ensure that an attorney stepping into my shoes can act with confidence with regard to client matters that I have open.   In this regard, as lawyers, the patterns of daily practice really act to either help or hinder the effectiveness of our larger disaster plan which may only be revised or updated every now and then.

  • Develop a network of other lawyers to call upon for assistance and know (and stick to) your practice limits
  • Approach your practice like a business

Whether you are a solo or in a 2 man shop, approach your practice like a business.   Now I am not a business coach so I will stop with having said that.  Just think about it.

 My next post will likely move in a new direction. Thanks for reading – I hope it helps.

 

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Going Solo and Running a Small Estate Planning Practice – Part V

Going Solo Part V

This week’s topic is “Going Solo and Running a Small Estate Planning Practice – Part V”.

In Part I of this series I discussed some introductory thoughts about going solo, practicing with precision and practicing efficiently.  In Part II of this series I continued the discussion of “Practicing Efficiently” and began my coverage of “case management”.   In Part III of this series I continued the discussion of case management.  In Part IV I discussed some practical considerations surrounding opening a new law practice.  I was going to continue to address opening a new office and focus on office systems but have changed my mind. Instead I want to blog about communicating with clients. I will return to office systems (because it is such an exciting topic!) at some point in the future.

Before I turn to discuss communicating with clients, I want to share an experience I had in the opposite context – public speaking.  Last Monday I was a speaker at a legal CLE seminar with 2 other attorneys.  The truth is – I really don’t like speaking publicly and, frankly, am not a very effective public speaker.   However, speaking publicly generally comes with the territory of being a lawyer and I feel it is something to strive to become comfortable with, or, as a another blogger recently stated – is something to get comfortable with feeling uncomfortable doing.  So every year I try to participate in at least one public speaking engagement and it does seem to get less nerve racking the more I do it.  Additionally, speaking publicly on a topic is the best way to ensure that I take time out of the practice and learn or relearn in detail what I am speaking about.

While listening to one more senior and seasoned speakers, I was impressed by his ability to connect to the audience members and his easy way of pausing to allow the audience to process what he was communicating.   He tried to cover less material than I did and made effective use of examples.  It wasn’t difficult to see that he was a natural teacher or had several years of experience teaching.   In short, it was obvious to me that while he was communicating with the audience, I was merely talking to the audience.   It was a humbling experience.

When speaking to a group I tend to assume my audience is following along even if they in fact are not.   I also tend to assume that the gap between my experience and knowledge level is smaller than may in fact be the case.  I suppose I simply assume no gulf exists and don’t attempt to build an effective bridge before I start trying to talk across the gulf. Should I be surprised if my words are carried off by the traversing winds?

I use to struggle with this same issue in client communications too, and perhaps still do, but feel I have over the years become more adept at communicating legal ideas in the smaller group context – even if I still flounder at the large group level.  I think my improvement has been the result of conscious efforts and reflection as much as anything else.  Still – I think I have a lot of room for improvement in both the small group as well as large group settings.

As a solo or attorney in a small firm, there are less opportunities to work with another lawyer in a small group setting.   I, like a lot of you, have developed an approach or style that seems to work and go with it and it may be years before a conscious effort is made to examine that approach.  In contrast, in the large group setting we have more opportunities to observe other speakers and to compare and contrast styles of speaking or ways to effectively engage the audience.  I think this situation is unfortunate, as it is in the small group setting that the most important opportunity for communication occurs.  Are we, am I, just blowing it in the small group setting and not even realizing it?  Isn’t that a terrifying thought?

At the start of my materials for the seminar I mentioned above I included, ironically, a section on communicating with clients – though I did not have time to actually speak on that topic.  Before I close the book on those seminar materials I thought this blog might be a good place to share some of what was provided in those materials and to use them to further probe my own shortcomings as a speaker, probably as a lawyer and perhaps more fundamentally as a human being.  Thankfully I think there is time to improve!

Now that estate taxes are a minor issue in estate planning, communicating the other complexities of the planning landscape seems more important than it ever has been.  The de-emphasis of the death tax in estate planning has, and will continue, to lull clients into a dangerous “I don’t need to plan zone”.  Consequently, I feel compelled to try to communicate more clearly about fundamentals and to rethink my overall approach to my practice these days more than I have in the past.  The practice landscape has changed, and it makes sense to me that styles of practice might need to be reviewed and revised too in the wake of this change.

With that said, let’s consider the initial attorney-client meeting.  I think this situation can be represented visually by the illustration attached. attorney – client

What this illustration tries to depict  is the box (self-imposed behavioral reactions to preconceived notions)  in which the client exists, which box contains the clients belief about the law, lawyers, what they  think they need, or what they think is  reasonable to pay for X,Y, Z service, etc.

When a client interacts with a lawyer, part of our role is to help them overcome those self-imposed behavioral reactions to what they believe is true, or what they think they need and to help them entertain new truths, truths which may be a little overwhelming or scary.   In short, our role is to get clients to think and sometimes act outside of their box.  Of course, we ourselves are in a box (some of us more than others) which may make it difficult to connect with the client.

You can’t help a client achieve the right estate planning course of action when their reaction is based on a preconceived idea which may or may not be known to you.   Notice I didn’t say “purpose” or “goal” because these are properly left to the client to determine. Our role, as planners, is to show the possible routes to achieve the purpose or goal of a client, not to tell them what that goal or purpose should be.   To know that, we only need to ask questions and listen, and where necessary, avoid the obstacles of misunderstanding or lack of knowledge.

Someone once told me that if I want to electrify or turn on the client, I should visualize that they are the receptacle or electrical outlet and that I am the plug.  The outlet can’t move, the plug has to come to them.  That is to say, the plug has to figure out “where” the client is and come down to their level to connect.  It doesn’t work the other way around. Since every client is different, that can be difficult to do in an hour or 2 hours!  In the context of the seminar I was discussing earlier,  I made a related mistake of simply not mentally acknowledging who or where my audience was and by expecting them to  connect with what I was trying to convey.  The result was that I just talked at them for about an hour.  Not a great feeling after spending a lot of time preparing for the seminar rather than working.

Having acknowledged this, I think it is important to also acknowledge that, initially the client’s comfort level at initial meeting may be low.  It is important to stop and just acknowledge this and to contemplate ways to set client at ease if necessary.  For some reason I find this much easier to do this when working with an individual or couple but tend to blow this connection at the larger group level.

Some clients are quickly at ease.  Clients that have been referred by a friend or trusted professional are common examples.  They have adopted the trust another has in you.  I think this is why referred clients make the best clients because they come to us with a level of trust built in that makes it easy to work with them.  Additionally, as a class, referred clients might generally be the trusting sort.

If a client has not be referred to you by another professional or friend, or you get that sense that you are being interviewed, or that the client is not a ease, it may be more important to test the waters of their concerns to see where you might find dry land on which to start to establish trust.

  1. What initial concerns do they have generally
  2. Have they worked with an attorney before?
  3. Was that a positive or negative experience?
  4. If negative, what was the issue and is it something I can help address in this relationship to ensure that we are able to work together productively?

Concerns that a new client likely will have at the top of their list may include:

  1. Billing? How much will “this” costs?
  2. When do I have to pay?
  3. Who you are and what is your background and experience
  4. Will you still be around in a year, 5 years or 10 years to help me or my family?
  5. How long is this going to take (they may have other appointments)?

My point here is to simply bring to mind the importance of connecting with the client before devolving into what you can offer them.  Sometimes finding and presenting the right strategy simply depends on setting the client at ease, timing and/or on asking the right questions.

Depending on the client, they may need some – or a lot – of education as to what their options are and may need additional time to adjust to new ideas. They may have preconceived ideas that you are not aware of and need time to fully appreciate and understand.  I guess I am saying that when it comes to presenting strategies – don’t rush it. Take time to connect and get a sense of who your client (or in the seminar context your audience) is and how you might best connect with them.

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Going Solo and Running a Small Estate Planning Practice – Part IV

Going Solo Part IV

This week’s topic is “Going Solo and Running a Small Estate Planning Practice – Part IV”.  These materials are based, in part, on materials I prepared for a 2012 seminar hosted by the Maine State Bar Association entitled “Essentials For Solo and Small Firms Practitioners”.

In Part I of this series I discussed some introductory thoughts about going solo, practicing with precision and practicing efficiently.  In Part II of this series I continued the discussion of “Practicing Efficiently” and began my coverage of “case management”.   In Part III of this series I continued the discussion of case management.  In Part IV I want to turn to some practical considerations surrounding opening a new law practice.   Remember, to try to keep it simple and to start slow, especially if you haven’t practiced in a firm setting.   While these materials generally contemplate a small traditional office practice, many practices begin (and remain) at home.  Many practices are virtual and use rented space for client meetings.

Practical Considerations.  The following is an overview of what I think are some practical considerations in going solo:

1.  Business Plan:           

First order of business – come up with a business plan.  This does not have to be complicated.  My first plan:  Estate planning, probate and tax law firm; single member PLLC; no employees; doing business in Maine.

The following will provide the reader with a little more framework surrounding the decisions that underlie my first business plan.

Practicing in Multiple Jurisdictions:  If you are just starting out, pick a state and wait a while before launching yourself into another state.  Keep it simple and try to not to spread yourself too thin.  If the primary goal of your practice is to avoid making mistakes while serving your clients well, adding jurisdictional coverage before you have solid understanding of what you are doing in your primary jurisdiction will not likely advance that primary purpose.

General Practice or Specialized Practice:  I would not recommend a general practice unless you are going to be practicing in a small town or have obtained a high level of skill in a particular area already.   Skills and knowledge simply don’t come cheaply and mistakes are can expensive both in terms of time and money.  If you can, focus on an area and build out. If you can stick it out and are good at what you do, the work will come.  I tend to think a lawyer is better off focusing on limiting liability rather than making money.  For this reason I tend to view a general practice as a liability pit.

Entity Choice:  I selected a PLLC because it was easy and simple, particularly administratively.  Initially I operated federal as a sole proprietorship.  Once my wife joined the practice we made an S Corporation election.  There are many entity choices to consider. For an overview table of entity’s in Maine, please e-mail me.

2. Startup savings, costs and expenses

The ideal:  I have read that it is suggested that you have enough cash available to cover start-up costs and at least the first 6 months to one year of operating expenses plus personal living expenses.  That would be the ideal situation.

The truth: The truth is that few of the people will go solo with the ideal amount set aside outside of a retirement account unless you count credit.  If you rely on credit, you might expect to borrow between $10K and $15K on the low side to get through year one.  There are a lot of places to save and a lot to spend and managing cash flow is critical until you have more than enough work coming in and enough bills out to bridge the gap.

Personal Living Expenses:  Expenses to consider:

  • Mortgage/rent
  • Utilities
  • Insurance
  • Food
  • Gas
  • Children
  • Pets
  • Unreimbursed medical
  • Auto loans
  • Student loans
  • Existing unsecured loans or lines of credit.
  • Spending money
  • Holidays
  • Savings

Business Expenses:  Expenses to consider:

Furniture:

  • Lawyer’s office
  • desk and chair
  • guest chairs     (at least 2)
  • file cabinet
  • fire proof cabinet
  • wastebasket
  • Bookcase
  • Decorative stuff

Tip: Looks aren’t everything.  Buy used where you can.

Reception area (if any)

  • Chairs
  • coffee table
  • lamp
  • pictures

Equipment:

  • Telephone(s) with answering machine (or arrange for voice mail service)
  • Cell phone
  • Computer(s) with appropriate software and printer
  • Photocopy machine
  • Paper shredder (or commercial service, such as Without a Trace)
  • Fax machine – part of photocopy or via e-mail (or use an internet fax)
  • Calculator
  • Binding machine or binders for estate planning documents (optional)
  • Supplies (such as paper, envelopes, pens, pencils, stapler, hole punch, date stamp, file folders, rubber bands, tape, 3-ring binders, staple remover, paper clips, and phone message pads)

Tip: A word on paper.  Forget the fancy paper.  It really doesn’t impress many folks.  You are going to (hopefully) go through reams and reams of paper.  Find a basic printer paper to get started with.  I still have the 1 ream (unopened) of expensive paper I purchased when I opened.

  • Library/ Computer Software (this will likely be the subject of another post but see my previous posts for examples of software I rely on)

Miscellaneous office supplies:

  • Business cards (keep it simple, legible and affordable)
  • Office signs (if any)
  • Town permit fees
  • Cleaning supplies
  • Fire extinguisher (fires happen, be prepared)

Insurance:

  • Premises liability insurance
  • Malpractice insurance
  • Health insurance
  • Life and/or disability

Contract Services:

  • Utilities
  • Shredding
  • IT (Sooner or later you will likely need IT help. Figure out now where you will get it and how quickly your IT person can respond. )
  • Phone
  • Internet
  • E-mail
  • Website
  • Website design
  • Advertising

Taxes

Do yourself a favor, find an accountant and seek their help early and often during your first couple of years.  Meet quarterly to ensure you are on track.  Yes, it will be costly but staying on top of your taxes and having someone help you with cash flow projections can be very useful.

Other Expenses to Consider

  • External backup or online backup (or both) or multiple hard drives.
  • Bar fees
  • CLE fees
  • US Postal Service or other fees related to mail delivery and service (Postage meters are convenient but an additional expense you may want to avoid. I find going to the post office is a good break, often the only one during the day, and is an opportunity to meet people. I use e-mail and attachments wherever appropriate to save on postage.
  • PO Box annual fee (optional)

Next week I will  continue to discuss practical issues and will cover office systems or processes that a new attorney might want to consider when starting up a solo office.

 

 

 

 

 

 

 

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Going Solo and Running a Small Estate Planning Practice – Part III

Going Solo and Running a Small Estate Planning Practice – Part III

This week’s topic is “Going Solo and Running a Small Estate Planning Practice – Part III”.  These materials are based, in part, on materials I prepared for a 2012 seminar hosted by the Maine State Bar Association entitled “Essentials For Solo and Small Firms Practitioners”.

In Part I of this series I discussed some introductory thoughts about going solo, practicing with precision and practicing efficiently.  In Part II of this series I continued the discussion of “Practicing Efficiently” and began my coverage of “case management”.  You might call this your work flow or work process but I’ll just call it “case management”.  I use the term “case management” broadly and believe it starts when, or even before, the client walks in the door and ends when your last client has been turned over to someone else and you retire or die.

File Management

Why bother documenting your case management process?  I think it comes down to this:  It is not a question of whether or not you will make mistakes in your practice.  You will.  The only questions are: 1) how substantive are the mistakes, 2) are they correctable or covered by malpractice insurance; 3) once you have made them (or, better yet, seen them coming) do you keep making them or do you adjust and correct your process/procedure so avoid making the same mistakes again or to minimize your ongoing liability exposure; and 4) are you even aware of the mistakes you are making?  Outlining your process, I think, will help you ensure a consistent approach and, I also think, help you make adjustments to the process and to consistently implement such adjustments in your process in the future. Ideally, following the processes you put into place will safeguard you when practice, or life, gets hectic and your attention is elsewhere.

1) Managing the Estate Planning Drafting Process: After the initial client meeting I prepare a memo to the file reviewing that meeting and work up any tax analysis or asset division that may be required to the extent I am then able.  I try to schedule this memo for right after the meeting.  I have developed a custom template in HotDocs that makes this process less drudgery than it might otherwise be – though my law partner still sees it as drudgery.  Using HotDocs to develop customized templates to help draft routine documents that are susceptible to being outlined is very helpful and helps avoid overlooking something in the process.

To avoid a rushed job, I do my initial estate planning drafts very early on after the initial meeting, often that same day or within a day or two after I meet with a client.  Doing drafts early and giving them time to sit before you review them again is a good practice for many reasons.   First, it ensures that your documents reflect your most recent memory of what the client wanted, which hopefully were recorded in a memo to the file.  Second, early drafting helps avoid future delays and/or a rushed product as the deadline approaches.   Allowing for the passage of time between drafting and the review process increases your ability to see the drafts objectively. When reviewing your documents, do so with an objective process in mind.  This helps ensure that your documents are tight.  I have developed a checklist that I use to review every Will and have made this available at http://www.smiliegrogers.com/attorney-to-attorney.html.   Don’t want to use a checklist?  Don’t think you need it?  How about your heart surgeon?  Do you want him or her to use a checklist?  Right – I thought so!  Of course you would!  We all have off days and checklists are a good means to safeguard your process on those days as well as any other day.  For attorneys just starting to practice, checklists are a great way to force them to internalize the review process a more seasoned attorney might naturally go through without an actual checklist.  Don’t leave your clients’ matters to chance.  Use a checklist for every document you draft and for every process in you estate planning practice that matters.  Admittedly the creation of checklists are time consuming.  You don’t always have to reinvent the process.  I collect checklists as I come across them and save them up to work on and incorporate into my practice on days when I feel less inclined to work on client matters.

After this week or two has passed, I review the entire file (my memo, their packet, other documents, the draft estate planning documents, etc.) and revise the draft documents as needed.  Unless I have any further questions for the client, at this point I will contact the client to schedule the next appointment to review and sign their draft documents. I generally don’t send out drafts because: 1) clients often won’t read them, 2) clients often won’t understand them without some explanation, 3) it is an additional expense and time saved, and 4) not sending drafts tends to decrease the total time required to complete the matter because it often takes clients a long time to review drafts or to admit that they simply won’t review them and that we need to meet to review them.  If the Will or Trust is likely to be the subject of dispute later on, I will send out drafts out in advance of the meeting or schedule a review meeting followed sometime later by an execution meeting.

If in the meantime the client has suggested changes, either as a result of questions I have asked or that they have independently sent to me, I memo my file with the required changes and then revise the drafts as required.  Try to develop a habit of documenting the need/request for the changes first and then making the changes – as this will help ensure you actually document the reason for the change.  

I then set the file aside again until the day before the meeting and give it a final review and review the drafts again from top to bottom and walk through my checklist review.  If changes are needed, I memo the file if necessary and make them but usually at this point any changes are not substantive.  I try to avoid reviewing drafts the day of the meeting but do usually review my memo again so that I am ready to pick up where I left off with the client.  

I review and explain the documents to the clients.  I don’t bill for this time (not hourly anyways) because I want my client’s full attention and don’t want them worrying about how much this review is costing.  Since I bill for estate planning documents on a flat fee basis, my flat fee factors in this review time.  Not billing hourly also puts pressure on me to be succinct and have my execution process down flat.  Even if I bill hourly for other time, I still have found that the review and execution meeting is best not billed hourly but that is a matter of preference.

If a substantive change was made during the document signing, I make a note of it with a memo to the file.   This is an important step and should not be overlooked as it may come back to bite you.  If significant changes were made, I might even have the client sign my memo to the file and scan it.  For the sake of those who begin to practice without the benefit of a mentor, I will repeat the last point.  Memo requested changes just as though you were a contractor building a house.  If the owner wants a new window where the plans did not call for one, just memo the change on the plan and have them approve of it (or at least make mention of it in correspondence to the client).  If you don’t, the finished product won’t reflect what you have in the file and that may create a problem down the road.

After the meeting, assuming the originals were executed, I scan the originals and save them to the client’s digital file. I do this right away.  If the client wants paper copies, I prepare them at this time too, though I may not bind them until later.  This helps move the ball forward and besides, originals make the best copies. These days I often deliver copies to my clients by using an estate planning USB drive.  I order 50 USB drives at a time.  Many clients like having PDFs on a USB drive instead of paper copies and it saves me time and recourses to use a USB drive instead of having to bind the documents.  To encourage clients to use the USB drive I use to offer a small discount for its use but have found that a discount is not necessary.

I place the originals in envelopes (large mailing envelopes) I already have ready for this purpose in the client’s file (see above) and secure them in my vault. I record that vault entry in a Will vault log.

At this time I mail any documents that need to be mailed such as: 1) Advance Health Care Directives to physicians; 2) deeds to the Registry; and 3) letters to former estate planning counsel.  I likely will also prepare a draft letter to client transmitting USB drive or bound documents and terminating my representation in the matter.  I use to take time to describe the documents being transmitted but no longer do or don’t do so in detail.   First, clients don’t seem to want to pay for this additional work and, least I should not be completely accurate in my overview, I have developed a concern that mistakes in such a letter might work against me even if the underlying documents were done correctly. In short, I fail to see a distinct advantage for long complex overviews and only see disadvantages.  However, when the documents are complex enough, I will include a visual reviewing the overall plan and dispositive provisions.

2) File Closing: At this point I usually break down the client’s physical file and prepare to close it.   All originals, or anything that needs to stick around after 8 years goes into the Will vault with the originals.  I use the same envelopes I use to store originals in my vault to store the contents of a client’s file.  I store these envelopes in boxes that I receive when I order a case of paper from W.B. Mason.    I make labels that identify these file boxes (Example: “Confidential, Box 2 File Storage for 2011-2012, Shred in 2020).  I scan and save the estate closing form which documents the file closing process.

I log the placement of the file envelope in a box log dedicated to this purpose.

Sample:

Box 5 Inventory Sheet

Shred in ______

Location of Box: __________

Added to Master Tracking List:   ___________

 

Name Year/Matter Notes

I log the box log to a master tracking list.

Sample:

FILE STORAGE – MASTER TRACKING LIST

Box No. Location Notes Shred Date Check when Shred Completed
Box 1 Moved to _________ on 8-11-12 from Office. SGR atty files.

Box is full

2020
Box 2 Open 2020
Box 3
Box 4
Box 5

 

I have prepared an estate planning file closing checklist and walk through it and actually check it off as I close each file.  It essentially follows the step above but includes some additional items if real estate was involved.  I cannot imagine taking the risk of closing a file without using this checklist and also feel that the checklist helps force me to finalize the closing of the file rather than having that process drag out over days, weeks or even months.  When I am done with it, I scan it and add it to the digital file and the paper file.   At this point I have no doubt that the file is completely closed (except for sending the client their copies or USB file) and that I can move on safely and without concern that something was left undone.  I am not going to share my file closing checklist, come up with your own – it’s your practice – so make it a practice!

3) Document Vault:  I think having an inventory of your document vault is very important.  Not only do I think that they are an important from an ethical or general “fiduciary” perspective, I think they can serve as a useful tool.  They can, for example contain detailed information about your client’s general plan (the type of funding formula used, for example), whether there are known adverse parties (such as a disinherited son), whether the client is living or dead, whether the will has been probated or if the probate is closed and when, whether or not you are named as an agent, Personal Representative (Executor) or Trustee, etc. The earlier you start out building such an inventory, the better.  I have built my inventory in Excel, rather than in a word document, and think it is well suited for this purpose even though I am not using many of ordinary features of Excel.

Coming soon: Going Solo and Running a Small Estate Planning Practice – Part IV, wherein I will quickly review some practical business issues you might find helpful if you are about to go solo.

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