Monday, April 6, 2020

A Free Will for Oregon Residents in a Time of Social Distancing

The Coronavirus pandemic caused me to close my law office. I closed the estate planning part of my practice because I couldn’t meet with clients and couldn’t bring together the people necessary to have documents witnessed and notarized. Yet, some people really need to have a will done.
I have used Google docs to put together an automated system that will generate an Oregon will for those in need who cannot get to a lawyer or collect the witnesses needed for an estate plan. This will contains clauses specifically identifying the COVID-19 emergency and it relies on laws specific to Oregon. It is a temporary fix and is not an all-purpose estate plan. It is offered to those who need a temporary estate plan until the pandemic is over.
Follow the link below and fill out the form. Your answers will generate a will that will be sent to your email address as a .pdf file. I will look at it briefly. I will not give a consultation or customize the will for you. There is no charge, and I will do this as long as I can or until I get in trouble for doing it.
When you receive your will, carefully follow the directions that accompany it, and, when the pandemic is over, make an appointment with a lawyer to get a permanent replacement.
If you like this and want to show appreciation, buy a book published by Salish Ponds Press
To go to the will form click here.

Tuesday, September 3, 2019

Things to know if you are being investigated by Oregon Adult Protective Services

There is a knock at the door. You answer and find yourself confronted by a representative of Oregon Adult Protective Services (APS). The APS investigator asks if he or she can come in and talk to you about an elder you know. You invite the agent in and you quickly realize that someone has made a complaint to Adult Protective Services accusing you of the financial exploitation of an elder.

In this post, I walk you through what is going on when you are investigated by APS and give some hints as to how to deal with the agency and the investigation.

What is Going On

Adult protective services is a division of the Oregon Department of Human Services. When a complaint is called in alleging the financial or physical abuse of an elder or person with disabilities, APS is obligated to investigate. The agents talk to the elder, if possible, witnesses and the alleged perpetrator. The investigation, once commenced, must be completed within 120 days. At the end of the investigation, the investigator finds that the allegations are "substantiated," "not substantiated" or "inconclusive." 

If the allegations of wrongdoing are "substantiated," the report is passed to the district attorney in the county in which the wrongdoing allegedly took place. The district attorney evaluates the case on the basis of whether there is sufficient evidence and injury to warrant criminal prosecution. If the district attorney decides to prosecute, the accused faces prison time and needs a criminal law lawyer. I am not one of those and do not defend in criminal cases.

In real life, almost none of the substantiated elder abuse reports delivered to the district attorney go any farther than the desk of an assistant DA. To prevail in a criminal case the DA must prove the exploitation beyond a reasonable doubt and the damage needs to be of sufficient magnitude to warrant expenditure of public resources on the case. I can't predict what district attorneys do. They are a mystery to me, but after working in this field for a long time I know that almost none of the substantiated elder abuse findings turn into a criminal prosecution.

If the district attorney does not prosecute then the report by the investigator goes into the super-secret APS file cabinet where nobody can see it unless you go through a whole bunch of complicated legal hoops. I can handle those hoops and get access to the report if it is important enough, but the process is so expensive that I seldom do it.

So Why Should I Care?

If you are being investigated and you know that you will probably not be prosecuted criminally and the report will disappear into the secret cabinet, you might well ask, why do I care? Perhaps you shouldn't, or at least you should not be as upset as the investigator probably made you. There are, however, more troubles that can arise.

Every APS office has a cozy relationship with a couple of lawyers (or professional fiduciaries) in the neighborhood who practice elder law. If The APS is intent upon going after the suspected bad guy the worker can contact the lawyer, give the lawyer the facts of the case, and suggest that the lawyer go after the perpetrator in civil court. The lawyer will file to have a guardian and/or conservator appointed for the allegedly abused elder on the grounds that the elder is being financially abused and is incapable of protecting him or herself. Even though neither the lawyer nor the fiduciary has a prior connection to the family, the courts generally allow this in the interests of protecting elders. The lawyer will nominate his or her favorite professional fiduciary, and when the court appoints a conservator, the conservator will then sue the perpetrator for financial elder abuse. 

The lawyer evaluates these cases on the basis of whether he can make any money from it. The APS investigator is protecting elders and going after bad guys. The civil lawyer who gets the case from the APS investigator is doing it for the money.

When the financial elder abuse case is filed and served, you are in trouble. Although elder financial abuse and financial exploitation are not identical in the law, they are very close. In an elder abuse civil case the plaintiff is allowed to seek triple damages -- triple the amount taken from the elder -- plus attorney fees. The accused, however, must pay his or her own fees no matter what the outcome. Being sued for elder financial abuse is no fun and defending the case is not for amateurs.

Even if you are not sued for elder abuse, the substantiated report in the secret cabinet can cause you a problem if you want to work in elder care or social services. Your background check will bring up the report and you will have some uncomfortable explaining to do.

How does APS operate and what powers does it have?

APS investigators operated largely on bluff and chutzpa?. You have no obligation to speak to an APS investigator and the investigators have no right to enter your home or request documents from you. Under certain circumstances, APS can obtain bank and financial records related to the case, but if you are under investigation you have no obligation to provide the investigator anything. They can, however, be aggressive and persistent, subtly implying that they have powers and legal tools that they, in reality, do not have.

Often when I represent the object of an APS investigation, I contact the APS investigator and make my client available for an interview in my office. In only one out of five cases, is APS willing to come to my office for the interview? I also request that the APS investigator not attempt to talk to my client without me present. Sometimes they agree to this, but they are not required to, and I have had APS workers with police appear at my client's home repeatedly, even after being asked not to do that. The rules that apply to lawyers when it comes to represented parties do not apply to APS.

Although APS can refer a case for criminal prosecution and it can slip the case to its favorite elder law lawyer, APS does not get restraining orders, does not itself file elder abuse civil cases, and rarely pays to have a guardian or conservator appointed. Those are the tools I have. APS does not.

Do you need a lawyer?

Although the APS investigator has a bank of Oregon Department of Justice lawyers backing him or her, the investigator often tells you in all sincerity that you don't need a lawyer. He or she may even intimate that getting a lawyer amounts to a lack of cooperation and makes it more likely the investigation will go against you. Being a lawyer, APS loves me when I am on their side, and hates me when I do defense. The agency is not a big fan of playing fair and evening the odds.

Suggestions for Dealing with APS

It tends to be pretty easy to figure out if you are the alleged perpetrator in the elder abuse complaint. The APS investigator may not say it directly, but you will be able to tell from the tenor and nature of the questions. If it looks like the agency is coming after you, I would suggest the following:
  • Lawyer up. I am not averse to having my clients talk to the APS investigator. I simply think that things go better for the alleged perpetrator if the interview takes place in my office.
  • Don't talk to the APS investigator without your lawyer, in the evening or in your home. 
  • Ask for a written statement of the results of the investigation. APS doesn't have to give you a written determination unless you ask for it.
  • Don't believe that APS can settle a potential civil case or somehow clear you. APS cannot give you a release, settle a case that has not been filed, or agree to make a certain finding if you do certain things. 

And No Matter What, APS is always right

My wife was a social worker before she retired. One morning at breakfast, I opined that social workers were poor sports. She asked, "Why is that?" 

I went on to explain that with other lawyers I litigate the case -- win it or lose it, forget about it -- and go on to the next one. But with the social workers, if they don't win, they remain mad about it for a long time. They seem like poor losers.
My wife looked up from her breakfast and told me, "That's because we are always right."

She nailed it. I have gone through a full trial after which the court ruled that APS got it wrong. The investigator's only response to the ruling was that the court system screwed up again. Once APS makes up its mind about you, no matter how much evidence there is to the contrary, the agency will never admit a mistake or change its mind. Live with it.

Monday, June 11, 2018

The latest of my YouTube videos deals with what happens to property when you die if you own the property with another person. It addresses real estate and jointly owned bank and financial accounts.

Sunday, May 20, 2018

What happens to Personal Property When You Die

I am continuing to make YouTube videos about elder law and estate planning issues. This one is about what happens to personal property when someone dies. It does not have good news for those of you who have lists of where you want your stuff to go.

Saturday, March 24, 2018

I do a YouTube on Powers of Attorney


I am going high tech. I recently did a Youtube video which provides more than you ever wanted to know about powers of attorney.

Wednesday, November 22, 2017

Repost of "The Anatomy of an Oregon Will"

The old estate planners used to say to me, "no matter how much the clients want it, there is no such thing as a simple will." I didn't believe it. I figured it was just one of those things people say to make what they do for a living seem a little harder and more complicated than it really is. Reluctantly, as the years go by, I am coming around to their point of view.

There may be no such thing as a simple will, but there is such a thing as a short will. My average will for a middle class older couple with adult children is two pages long. The will is written in English and has no clauses that a high school graduate couldn't understand. Nevertheless, it is not simple. Each sentence, each paragraph, has a distinct purpose. I explain these purposes over and over again in my office, so I thought I would do so here.

For whom is the will written?

This is widely misunderstood. Every written document, whether a newspaper of a business contract, is written for an audience. The audience for will is not the relatives of the deceased, it is the probate judge who will oversee the wills administration. A remarkable number of people do not understand that a will is not self-executing. The power to administer the will comes from the court. You may be nominated in the will to be the executor of your mother's estate. The nomination is a request that the court appoint you. The court will try to honor your mother's request, but it may also decline to do so. You have no power or authority until the nomination in the will is affirmed by a court order. The will may leave you your mother's collection of antique hockey sticks, but you don't get your grubby hands on them until a judge says it's okay.
Allow me to say this again. A will has no power or authority until it is filed with the court and a judge appoints an executor.
Once a will is filed with the court it becomes a public record and any person wandering into the probate department is entitled to look at it and copy it. Therefore, once the person who wrote the will has died, there is never any reason to keep the contents of the will secret. Often I see a relative or group of relatives hoarding a will--refusing to let the other relatives know what is in it. This is crazy. If the will is going to be effective, it is going to end up as a publicly available document. There is no reason to keep the contents secret.

The first sentence.

The first sentence of a will declares the document to be a will, says who is writing it, and revokes all previous wills.  The best practice is to have old superseded wills revoked by a written document that has just as many witnesses as the will itself. The first sentence of the will takes care of that.

The listing of family.

The next part of the will generally tells whether the writer is married and lists his or her immediate family. This part of the will helps the court and the lawyers understand who is related to who and who is entitled to notice that the will is being administered. All persons who receive something and all natural heirs of a dead person are entitled to notice when a will is being administered. Just because a person is listed in the family section doesn't mean that person gets something, but if the familial tie is close the person is probably entitled to written notice of the probate.

Appointment of a personal representative.

The next section of a will often appoints a personal representative. This is the person who--if she isn't a notorious embezzler--will be appointed to be the executor of the estate. A personal representative and executor are the same thing. No matter what he or she is called, the person who has to gather up all the dead person's property, pay all the bills, and eventually distribute the money to the people named in the will, all under the eagle-eye supervision of the court staff. Naming your favorite son as your personal representative is not doing him a favor. Being personal representative is an annoying and nasty job. Nobody likes doing it. If you get the urge to spread the pain by naming a couple of your children as co-personal representatives, don't. Judges hate it, lawyers hate it, and it costs twice as much when--as always happens--the co-personal representatives don't get along and each asks for his or her own lawyer.

The last sentence in the paragraph appointing a personal representative allows the person you chose to serve without bond. The bond protects the heirs from a personal representative who decides to abscond with the money in the estate. Waiving the bond safes the estate money, unless of course you chose an executor who steals all the estate property. In that case, waiving the bond was not such a good idea.

Specific Gifts

In this part of the will we get down to giving stuff away. Giving things away is done in two stages. The first stage is specific gifts. A specific gift is to say "I give my baseball card collection to my cousin, Homer." Then you hope that the baseball card collection is still there twenty-five years later when you die. The most common specific gift is to give all your personal property to your spouse or your children. This is a specific gift of your stuff--your couch and your plates and your bust of Elvis that you got on that trip to Graceland. Lawyers and judges want the family quietly to divide this stuff so everyone is happy. Nobody except the family cares about this crap. If you choose to get in a pissing match with your relatives about it, the legal professionals will make fun of you behind your back. You need to make enough peace with your family to divide the personal property without going to court.

Some people have long lists of who they want to get what. My advice is to give the stuff away when you are alive. Once you are dead, by the time someone responsible gets around to inventorying your personal things, most of it will be gone anyway. Safes will be empty and safe deposit boxes will be filled with scrap paper. It doesn't happen all the time, but it happens a lot. If you want to be sure, give it away when you are alive.

Gifts of cash are specific gifts. If you give cousin Homer $25,000 instead of the baseball cards, that amount comes off the top. These kinds of specific gifts can get you in trouble. To see how, continue reading.

The Residue

"Residue," is a legal word for "everything else." It is the part of the will where the money is -- or at least should be. The residue is a legal container that expands or contracts to hold whatever you own at the moment of your death. If you are an average Joe or Josephine, the container holds your house, that rental you bought a while back, your stock account at Edward Jones, and what's left in your bank account. If you sell your house and use up your stocks paying for long term care, the residue of your estate will be small. If you win the lottery or get a big inheritance two days before you die, your residue will be big. When lawyers look at a will the first thing they look at is the residue clause. There are two reasons for this. One, the recipients of the residue are normally the people who get the biggest chunk of the estate. Two, the residue contains the funds that will pay the lawyer.

A typical residue clause uses fractions or percentages. "I give the residue of my estate to my three children in equal shares." Each child gets one third. Fractions (or percentages) allow the legal container to get bigger or grow smaller without changing how the whole of it will be distributed. Whether it be big or small, the children each get a third.

The residue also pays the costs of administering the will. The lawyer and the personal representative get paid from the residue. Income taxes get paid from the residue. Costs of keeping and selling real estate come from the residue. If you are fortunate enough to have to pay estate taxes, payment may have to come from the residue. These costs come out of the residue, and what remains is distributed to the people named in the will to receive it.  

Your best bet is to leave all your major assets in the residue. If you are an average person and you give everything away as specific gifts--your house to Able, your stocks to Cain, and your bank accounts to Seth--you may well have given everything away. There will be no residue and your personal representative will have a lot harder time of it. It will get done, mind you, but it will be more complicated and more expensive.

The worst cases of emptying the residue with specific gifts come from giving gifts of set dollar amounts. More than one elder has dribbled out generous cash gifts to distant relatives--ten thousand here, twenty thousand there. The elder then spent most of her money on long term care so that when she finally dies, the distant relatives take it all and the children named to receive the residue, get little or nothing.

The residue is designed to hold the bulk of the estate. Wills work best when you use the residue clause for the purpose for which it was designed..

The other stuff.

After giving away what you own, most wills go on with a lot of other stuff. You might have a trust to hold money in case some of your estate goes to a child. You might make some tax provisions. You might set the rules for who gets the money if someone named in the will dies before you do. As you move farther and farther away from the clauses that give stuff away the smaller the chance that anybody will actually ever read what it says. Some lawyers will tell you that the other stuff is really important. They might be right. Others will admit its there because it has always been in the form they use, and if it is in the form, there must be a good reason..

The signing

The will must be signed by the person making it. The signature must be witnessed by two people, and the witnesses must sign as witnesses before the person making the will dies. You cannot get around this requirement by hand writing your will or any other way. If you don't have the signatures of two witnesses, the thing is no good.

Lawyers add a document called a self-proving affidavit that is not required but makes the getting the will admitted to probate a lot easier. If you go to a lawyer, let him or her take care of that. If you are trying this on your own, don't worry about it. You have enough to not screw up without worrying about the affidavit.

Friday, November 17, 2017

My one day a week retirement

When I turned sixty-six in August of this year the Social Security Administration sent me a letter offering to send me money every month. All I had to do was apply. I didn't take them up in it, but it did get me thinking about retirement, and, as of September, I have retired .... on Fridays.

Nellie, my legal assistant, and I will still practice probate and elder law Monday through Thursday. We will write wills and trusts. We will cause guardians and conservators to be appointed and we will probate wills. We will even file elder abuse cases and will contests. We will not, however, do any of that on Fridays.

I want to remind people that I have been writing this blog for a long time. If you want to find a particular subject you can use the search box on the right or click on the list of labels below the search box. You should be able to find what you want. If you want simple explanations of basic estate planning documents you can look at my posts by date and click on the earlier years of this blog for many of those answers.

If you like paper better than a blog, I give away my Oregon Elder Law to anyone who wants it. Call my office at 503-661-2540 or email me at

The book is an edited version of my early blog posts and covers all the basics. If you are shy about calling Nellie and having her send you a copy, you can get it on Amazon.

If you want to read my other books, which have nothing to do with law, you can get them here and here.

If you do want to call in for the book, be sure to do it between Monday and Thursday, because if you call on Friday we won't be there.