The Danger of Hiring a Busy Oregon Elder Law Lawyer

On a day-to-day level I deal with a lot of different lawyers, almost all of them Oregon elder law lawyers. These lawyers come in all shapes in sizes. Some are laid back and easy going. Others are high strung and tense. Some are cynical, others are true believers. This range of personalities allows you as a potential client to find a lawyer with a temperament and approach that matches your own. Often a good temperamental match between the lawyer and the client is more important than the lawyers skill or prestige in the legal community. You may want a bulldog for a lawyer, or an intellectual, or maybe a natural-born mediator. But the one thing you never want is a busy lawyer. 

Being busy is not a function of how successful a lawyer is or how much business he or she may have at the moment. It is not a reflection of the lawyer’s commitment to his profession or his family or his community. Being busy is a life-style choice. The busy lawyer was a busy something else before he became a lawyer and has probably been busy since he was ten years old. It is part of his temperament and an integral part to his view of life. It is a personal value, and like the workaholic, the busy lawyer believes in his heart, that his way of living busily is morally superior to the alternatives. I won’t opine on the moral question, but I can assure you that if you need a lawyer who will respond to your needs, you don’t want to hire a busy one.

Busy lawyers fail to return phone calls, take weeks to get your work done, miss appointments, and fail to get their documents written until the last moment. They cost you money when they don’t prepare in time to make negotiated solutions possible. They fail to keep you fully informed of the progress of your case, and they are seldom available when you have questions. They repeatedly justify these behavior's by telling you how busy they are. 

 

Don’t hire these folks. Busy lawyers are never going to become non-busy. It is not a temporary condition, it is personal ethos that the person has developed over a long time. Perhaps, because they are busy, they do in the end accomplish a lot. That does not mean you should let one of them be your lawyer. You want someone who has the time to respond to your needs; someone who will complete your legal work or conduct your case with careful, unhurried consideration. You pay a lot for a lawyer. You shouldn’t put out that kind of money for one who is busy.

When considering who to hire as your Oregon elder law lawyer, I suggest asking directly about their busy-ness. “How busy are you?” “Will you be available to answer my questions?” “Do you have ample time to do the work necessary in this case?” The answer will give you a look into the the way the lawyer operates. If the lawyer is very busy and seems proud of it, go elsewhere. If the lawyer is very busy, but can assure you that it is a temporary condition brought about by her poor time management—a condition that will be remedied in the near future—consider the person. If the person is not busy and seems to manage time in a way that will always leave some of it for you, you may have a winner. You want a lawyer who has the time, the inclination, and the ability to carefully conduct your case, one who will return your calls and answer your questions, one who takes her time with life and her cases. Let the busy lawyer change the world, but don’t put him in charge of your case.

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.

The Oregon Advance Directive, Health Care Power of Attorney, Living Will or whatever else it gets called.

In law, names change with the times, but the documents stay the same. What was once a living will became a health care power of attorney and has now become an advance directive. The Oregon document is called an advance directive and the form of the document was dictated by the legislature. The form does two things: (1) it names a person to make health care decisions for you if you cannot make them yourself; (2) it gives your doctor directions as to what sorts of treatment you want in circumstances where you are unable to give those directions yourself. Like any legal document, the devil is in the details.

I buy the Oregon advance directive forms in batches of a hundred from a local publisher and hand them out like candy. I am not the only one doing this. Hospitals buy them from the same publisher and hand them out as freely as I do. We give them away for free because we believe that everyone should have one.

Lets' take a look at what the advance directive does. You can take a look at and download the Oregon form here. The form contains three parts, aptly labeled part A, part B, and part C. Part A contains directions for filling out the form and a warning that no one can make you fill it out. Some political groups fear that the advance directive will make it easier for hospital employees to kill old people, thus the first part contains warnings, explanations, and assurances. I am not too worried about this stuff. If worry about evil nurses killing old people keeps you up at night, read part A carefully.

Part B nominates a person to make health care decisions for you if you cannot make them yourself. You fill out your personal information and then nominate a primary and secondary person to act for you in health care matters if you are in a coma and can't communicate your wishes. The person you nominate will be the person the doctors look to when it comes time to decide whether or not to pull the plug on your life support system. This person also has the right to put you in the mental ward for up to fourteen days if you are suffering from dementia and have turned dangerous to yourself or others.

I think that everyone should fill out part B of the Oregon advance directive. Name your spouse, a reliable child, or a good friend. Then talk to that person so he or she knows your attitude about end-of-life care.

Part C gives instructions to your doctor about specific procedures that you may or may not want. Most of the questions deal with tube feeding and life support. I only have the vaguest idea about what constitutes life support and I know nothing about tube feeding. Besides that, my sister is a doctor, and I am not convinced that doctors ever take directions. When I did my advance directive, I left Part C blank. If you are interested in things like tube feeding and have a doctor that might actually consider your wishes, then by all means go ahead and fill out Part C.

The point is that you can fill our Part B, or Par C or both, but you don't have to fill out both.

Once you have filled out the form you need to sign it in front of witnesses. If you filled out Part B, sign at the end of Part B. If you filled out Part C, sign at the end of Part C. If you filled out both, sign both. You need two witnesses to your signature. For the first witness anyone will work except your doctor and the person you named to be your health care representative in Part B. For the second witness, you must find someone (1) who is not related to you by blood, marriage or adoption; (2) who is not entitled to any of your estate after you die, and  (3) is not employed by a health care facility where you are residing. Use a next door neighbor, the mailman, or the legal assistant in my office.

Once you have filled out the advance directive and had it witnessed, you keep if for the next time you go to the hospital. When you go, take it along. They will ask if you have one and will be ready to take a picture of the original to put in your medical file. Then if you go under the knife and it doesn't work out, the hospital can look at the advance directive for contact information of the person allowed to make decisions for you.

Some basics about Oregon powers of attorney

In this blog I try to stay away from law school stuff, but all the confusion about powers of attorney convinces me it is time to break down for you what these documents are and how they work. It will require some basic law school concepts. The first significant line in the Oregon statute governing powers of attorney refers to "agent" and "principal." Lawyers spend a lot of time in law school studying agents and principals. To understand powers of attorney, you need to understand what they are.

A principal is someone who hires (or appoints) another person to act on his or her behalf. An agent is the person who gets hired (or appointed). A client comes to my office and hires me to write him a will. The client is the principal. I am the agent. While writing the will I must work for the best interests of my client and write the best will I can. I owe my principal a duty of loyalty and best efforts. I cannot, while working for my client, do anything that would harm him.

Employees are agents of the companies they work for. FBI agents are agents of the government. Real estate agents, insurance agents, literary agents, and talent agents are just a few of the kinds of agents out there working for their principals. Every agent works for the good of a principal and owes the principal a duty of loyalty. Most agents get paid for the work they do.

A "power of attorney" is a legal document that has very little to do with power and nothing to do with attorneys. When you sign a power of attorney you are appointing an agent. You are the principal. The person you appoint in the power of attorney is your agent.

The run-of-the-mill power of attorney form you get from the stationary store appoints an agent to manage financial matters for you. You give your agent the power to engage in financial transactions for your benefit. The agent can normally write checks in your name, make purchases, buy and sell your property, and use your money to pay your obligations.

(A power of attorney that allows somebody to make health care decisions is called in Oregon an advanced directive. I will write about those in another place. This post is about financial powers of attorney.)

Appointing an agent to make financial decisions for you does not prevent you from making your own decisions. I have a power of attorney naming my wife as my agent. The power of attorney allows her to get into my accounts and use my money. That does not mean I cannot have a midlife crises and go out and buy myelf a red Corvette. It simply means that, if necessary, my wife can get to my funds and use them to help me. I signed it because I want her to be able to have access to my money if I am in a coma, if I am lost at sea, or if I have been kidnapped by evil doers.

The powers given to an agent are always limited. When you hire a doctor, you do not authorize him to sell your car. When you go to Walmart you know that the clerk at the cash register is an agent of the Walmart company, but you know that the clerk does not have the power to sell you the building in which he or she works. The powers given to your agent by a power of attorney are spelled out in the document. If the document does not describe the power, the agent does not have it.

In my opinion people spend too much time thinking about the title on the power of attorney form and not enough time reading it. The title doesn't matter; what the document says does. Nevertheless, I want to discuss some common titles.

General Power of Attorney

    This refers to a wide-ranging, common, financial power of attorney giving the agent the power to do any financial act which the principal could do. The title neither adds nor subtracts anything from the powers granted. The agent and people dealing with the agent must read the document to see what powers are included. This is the kind of power of attorney most commonly used as part of an estate plan.

Special or Limited Power of Attorney

    This is a power of attorney that authorizes the agent to do specific acts on behalf of the principal. Banks will give you a special power of attorney (on their form) that allows a friend or relative access to your checking account. A special power of attorney might allow an agent to sell the home of a person who has moved to another country. Special powers of attorney are not normally used in estate planning.

Durable Power of Attorney

    The word "durable" used in describing a power of attorney means that if the principal becomes incapacitated, the agent still has the powers contained in the document. Most people, including myself, execute powers of attorney because we want someone to take care of us when we are incapacitated. Signing a power of attorney that is not durable defeats the purpose. Powers of attorney are durable unless the document says it isn't. The document does not have to have the word "durable" in the title in order for it to be valid after the incapacity of the principal.

Springing Power of Attorney   

A springing power of attorney nominates an agent but only allows the agent to act if the principal is incapacitated. This breaks from the general rule that powers of attorney are effective the moment they are signed and cease to be effective upon the death of the principal. In order for the agent nominated in a springing power of attorney to act, the agent will have to possess proof of incapacity. That proof is sometimes tough to get and banks are very skittish about honoring springing powers of attorney. I have never had a client ask for one and have never recommended one. I believe that if you don't trust your selected agent while you have capacity to make decisions on your own, you probably shouldn't trust the agent to make decisions after you have lost capacity.

Most powers of attorney executed by elders facing possible disability appoint an agent and give the agent wide-ranging powers to control the finances of the elder. In the right hands the power of attorney is a powerful tools for protecting elders. In the wrong hands it is a weapon that can be used to steal your life savings.

If you are appointed the agent for someone who becomes incapacitated, there are some basic rules that you must follow. Failure to follow these rules can get you sued and, in worst case scenarios, get you arrested. The rules are as follows:

1. The principal's money and property is not yours. You cannot use it to benefit yourself, your children or your dog.
2. The principal's money must be used for the benefit of the principal.
3. You must keep thorough records of transactions done with the principal's property.
4. You cannot give away money or property belonging to the principal unless the gift is part of a well considered plan devised by your Oregon elder law lawyer.
5. You cannot use the power of attorney to change the principal's estate plan or change beneficiary designations.
6. A principal with capacity can revoke a power of attorney for any reason or no reason. Once revoked, the agent has no more power to act for the principal.
7. When the principal dies, your ability to exercise the powers in the power of attorney ends.

Conservators appointed by a court to handle the finances of a disabled elder must keep meticulous records and file annual accounts that balance to the penny. The court demands proof of, and explanations for, every expenditure. An agent appointed pursuant to a power of attorney does not report to the court. But if money disappears, the agent may be asked for the same kind of records that a conservator files. Any agent working for a disabled elder should be at all times ready to produce for public examination records of every transaction and explanations of how the transaction benefited the disabled elder.

And finally, when the elder dies the agent's power dies too. Once the agent learns of the death of the principal, the agent must stop all activity on the elder's behalf and turn over all of the elder's money to the personal representative named in the elder's will.

Oregon Will Contests: The intent of the testator

One of the things Oregon elder law lawyers do is litigate will and trust contests. The work consists of challenging a will or a trust on the grounds that the document was executed when the now-dead elder didn't have capacity to make a will or because the will was the result of undue influence. It is nice work for a couple of reasons. The first is that it pays well. Challenging or defending wills and trusts takes a lot of lawyer time, and when you charge by the hour putting in a lot of time means making a lot of money. The second nice thing is that the work is not important. It is about money--no one's life depends about the outcome--and the money that is being argued about never belonged to any of the parties to the litigation. No living person involved in the case actually earned it. In certain respects it is like arguing about who owns a winning lottery ticket. The winner of the argument will be happy and the loser will be sad, but in the end, neither side loses anything.
 
Wills and testamentary trusts are written to express the "intent of the testator." The testator is the dead guy. The will is supposed to express what the dead person wanted to happen to his or her money, and the courts are suppose to examine these documents with the mission of discovering and carrying out the "intent of the testator."
 
A lot can happen on the way to determining and carrying out the intent of the testator. A court could decide that the testator was so incapacitated with dementia that he or she couldn't form an intent. The court could find that the will expressed the intent of the testator very clearly, but that it wasn't properly witnessed, in which case the money will go to the natural heirs or the folks named in a previous will. The court could find that the will was a result of undue influence and thus, it expressed the will of somebody other than the testator.

Lawyers are accustom to this state of ambiguity where a will or a trust expresses the intent of the testator—except when it doesn't. Parties to these case, however, knew the dead person personally, are privy to the family relationships, and often have very strong views as to what the dead person did and did not want to happen. I regularly have highly emotional people in my office incensed that some undeserving relative may get a piece of grandma's estate, that being the last thing in the world grandma would have wanted. These clients tell me they are not challenging the will because they want the money that will come their way when they win, but rather out of loyalty to grandma's wishes. Lawyers and judges hear this often, but have their doubts.

My sense is that in will contests the true intent of the testator  remains forever hidden. The cases degenerate into who is the good person and who is the bad person. Grandma, who in death is now a saint, obtained a vow from each relative that the other relatives should never have a penny of her money. The motive for mud slinging becomes so great that even the lawyers get involved. I do my best to not denigrate another lawyer's client (I don't always succeed), but many attorney's find bad-mouthing the other side to be one of the pleasures in a generally unpleasant profession. I get calls regularly with accusations that my client kills puppies for fun and I should be ashamed of myself for letting him or her in my office. I do my best to turn the other cheek.

Will contests, trust disputes, and elder financial abuse cases are long drawn-out legal affairs involving lots of lawyers. lots of mud slinging and lots of money. Don't consider starting one unless you are ready for it.

I decided to become a probate lawyer after reading Charles Dickens' Bleak House. I've read a lot of Dickens and I think that Bleak House is his best. If you haven't read it, you should. Don't be put off by the title. The novel is not bleak. A probate case called Jarndyce and Jarndyce lies at the center of the plot. The story is a morality tale. Some characters in the book put their lives on hold, waiting for the ruling in Jarndyce and Jardyce to deliver them the inheritance that will let them live the good life. These characters die alone in misery. Other characters pursue a good life without regard to lawyers and lawsuits. These characters find fulfillment and happiness. And in the end, the case of Jardyce and Jarndyce is abandoned because all of the money in the estate has gone to the lawyers. If that isn't a good reason to become a probate lawyer, I don't know what is.

I was in a judicial mediation once and the federal judge who was serving as mediator observed that lawsuits are legal gambling. Clients in will contests often tell me they don't care about the money—the gambling--but are continuing the lawsuit because it is what grandma would have wanted. I think it is about the money and gambling by  litigation neither honors or dishonors the dead. It is gambling, plain and simple, and it is for the living alone. Larwence Durell once wrote that "the dead think of us as dead." I suspect he was right. 

If I control my mother's money, am I liable for her debts?

Let’s get this clear. If you become a conservator for your mother, or her guardian, or her agent on a power of attorney, you do not become responsible for your mother’s debts. If you are a guardian or a conservator your activities are closely regulated by the courts and you should consult with your attorney. If your mother has made you her agent by signing a power of attorney, you are entitled to act on behalf of your mother, without becoming personally liable for her debts, as long as you fully disclose that you are acting on her behalf.

If your mother has appointed you her agent by signing a power of attorney, you are now empowered to make purchases for her and enter contracts that bind her. If you hire a mechanic to fix her Camaro and the mechanic doesn’t get paid, the mechanic can sue your mother, but not you. This rule is subject to two conditions. The first is that you fully inform the mechanic that you are acting on behalf of your mother pursuant to the power of attorney. The second is that the work on the Camaro must truly be for your mother. If you hid the fact that it was your mother’s Camaro and that the work was because she had a big race coming up, the mechanic could reasonably believe that you were hiring him, and he could then sue you. Similarly, if you told him the work was for your mother, but your mother couldn’t drive and you were the one with the upcoming race, then the work was not really for her--it was for you. The mechanic can sue you.

The key to being an agent pursuant to a power of attorney is to understand that the money you are handling is not your own and that everything you do must be done for the benefit of the person who signed the power. You can’t take the money for yourself or buy things for yourself. You can’t give it to your Aunt Millie or to the Red Cross. If you buy something or hire somebody, the thing or the service must benefit the person who appointed you and not benefit you. If you follow this rule and let everybody you deal with know that you are acting on behalf of another, you will never end up personally liable for paying the debts of the person who appointed you.

I was meant to be old

(What follows are my personal observations on being old, first published on my Salon Blog)

I am fifty-nine years of age, and I consider that old. I think that I am better at being old than I was at being any other age.

A friend of mine is sixty-eight. She is eagerly anticipating her fifty-year high school reunion. I can't understand it. I don't have anything against high school reunions. I didn't have unpleasant experiences in high school, but to me high school was just one of the many schools I went to on the path to getting old. I don't think much about high school or any of the schools I went to, and I have no great desire to revisit them.

Different people, I think, are better at different developmental stages. I was not good at being a child. I can't remember much of it, but I know there wasn't a lot about it I liked. Children are small, undisciplined, and uneducated. That is not a formula for happiness. I remember the sense of insecurity that came from knowing any adult with the inclination to do so could beat me up. I couldn't drive or vote or smoke. I found other children as helpless and hapless as I was, and adults were only condescendingly interested in what I had to say. On television children are either carefree and happy or victims. I was neither. To the best of my recollection, I was bored and ignored. If there are great pleasures in childhood, I didn't find them.

When I see children today I feel sorry for them. I think it is one of the worst times of a life--so stressful that many children can be driven to sobs several times in a day. When I have a chance to talk to children I assure them that things will get better. They seem to appreciate that.

I was not good at being a teenager either. I was physically larger by then, and eventually I could drive and smoke (not vote), but adults still didn't pay me much mind. As a teen I found my peers interesting, and that was a comfort. I got through my teen years mostly by not attracting undue attention. It was a time of hormone-driven confusion about what one was supposed to do in this thing called life. Some people I know were good a being teenagers. The prom queens, football stars, and class presidents among my friends can remember those years with a clarity and detail that I find somewhat frightening. I gladly exited my teen years and don't give them a lot of thought.

In my twenties I could finally vote and grow a beard, but I wasn't much better at young adulthood than I had been at being a teenager. Those were college days. Some of my friends blossomed; others fell by the wayside. I think athletes and scholars are happiest in this stage of life. I am not an athlete or a scholar. I managed to get through college and then law school. These schools did not seem to me much different from high school. I learned what I had to learn, but I don't remember my teachers' names, and I didn't develop long term friendships. I don't go to those class reunions either.

Middle age is a time for careers, mortgages, raising children, and productivity. I shaved the beard and quit smoking. I competed in the market place, but the house and the kids and the competitiveness that surrounds earning money hung on me like a another man's suit. Some of my friends thrived in middle age. I had bouts of contentment, but they were few and far between. For me middle age was better than what had proceeded it, but not a lot better.

And then I got old. I became old when I turned fifty. The beginning of physical and cognitive decay was a great relief to me. I could finally relax. I pared down the material goods that I had accumulated in middle age. I continued to earn, but ceased to believe that what I did was particularly important or that I had to excel at it. I never felt a close connection with other children, other teens, other young adults, or people in middle age, but I liked other old people. I wonder if I was born old, and had to get through all that other stuff to become who I was meant to be.

I like the accoutrement of being old. I like tweed jackets with leather patches on the elbows, slip-on shoes, all-cotton dress shirts (with medium starch) and silk ties. These things feel more natural than did the denim jeans, the Nikes, and the leather jackets of my younger years. I like my compact home with no yard to mow and no noisy children to quiet. I don't go to school any more or think that I ought to. I don't know how the country should be run and don't argue with people who do. The annoyances of life are less annoying now that I am old. I am seldom busy or in a hurry. I can finally read Proust.  

I don't claim that being old is better than the other stages of human life. That would be a middle-age thing to do. I think that people find their places in the world at different times. It wasn't my turn until I got old.

There are drawbacks to being good at being old. The big one is that you have to wait five decades for your time to shine. Another is that your ability to enjoy it is constantly infringed by a decaying body. My reunion-attending friend protests that we old people are boring, and she never wanted to grow up. Old age may not be the best time to become good at life, but it is better to be good at being old than to be old and be good at something else.

I was sitting on the deck of my mountain cabin a while back talking to my father. He is now in his eighties. He is old-old, as the gerontologists say. I can't say how I will do at that stage of life, if I make it, but I am not afraid of it. My father looked at me and at the cabin and, remembering all the drama in my younger years, he said, "I think this is the best part of your life right now." He was right.  Being old becomes me.

What is an Oregon Income Cap Trust?

An income cap trust is a legal trick that allows people who earn too much to qualify for Medicaid to get Medicaid anyway. The trust solves, somewhat underhandedly, a real problem. A elder needing nursing care cannot have the government pay for that care unless his or her income is less than $2022 per month. Nursing homes charge $6,000 or so a month. We do not, however, abandon our elderly on the side of the road because they earn too much for Medicaid but not enough to pay for a nursing home. The way we take care of these folks is with the income cap trust. It works like this.

An elder who needs long term care makes a Medicaid application. Let’’s say the Medicaid intake worker finds out that the elder has a combined total Social Security and pension income of $3,000. This is more than the $2,022 allowed. The Medicaid worker tells the elder she needs an income cap trust. The elder goes to her Oregon elder law lawyer. The lawyer calls the Medicaid worker to schmooze and then the lawyer then prepares the trust.

Income cap trusts are pretty much standard. You can see an example at the DHS website. The one I use is very similar to that one. A trusted relative usually serves as trustee and opens a bank account in the name of the trust. All of the elders monthly income is put in that account. Once all of the elder’s money has come in for a given month the trustee distributes it according to a schedule at the back of the trust. Because printing out the trust itself with the names changed from the last client is mostly a no-brainer, the work for the lawyer is working out the schedules.

The short version of the schedules is that the elder gets a few bucks, a few bucks may go to health insurance or taxes, and the rest of the elder’s income goes to the care center. The government then pays the difference between what the elder can pay and what the care acutally costs. This way no elders get parked on the street without care, and the government is sure that the elder is paying as much as he can.

It used to be the case the the trust allowed a distribution from the trust to pay the lawyer who made it. That is no longer the case. If an elder has income that is over the Medicaid limit of $2,022 she needs to budget some money for the lawyer. An elder must have less than $2,000 in available money or property before he will be eligible for Medicaid. A good way to get below this limit is to pay the lawyer for the work that will need to be done on the income cap trust.

Some income cap trusts are simple and get approved easily. Others, particularly when the elder going into care is married, can be fairly complicated. The key for the lawyer is having frequent and friendly contact with the Medicaid worker handling the case.

Oregon Will, Trust, and Estate Planning Forms

I have a new line of business in my office. It started by accident when I helped a couple I will call the Smiths. The Smiths wanted me to simplify an estate planning trust they had gotten from another lawyer because they couldn’t understand it. I stripped out everything that I skip over when I read trusts and put the rest of it in plain English. I sent a draft of my work out to be reviewed by the clients and it came back with numerous changes written in red ink. When I met with the couple about the changes the wife said to me. “You are the third lawyer to write us an estate plan. This is the first one I ever read.” They were able to make changes--make it their own--because they were able to understand what it said.

I had an moment of clarity about what we lawyers are doing to our clients.

A couple weeks later another couple came in. They handed me a paper brick of legalese and said, “The Smiths said you could get rid of this.” I took the brick and a few days later gave them an estate plan that was six pages of simple English. They paid a lot of money for those six pages, but getting rid of the brick was worth it to them. Since then there has been a steady stream of clients hiring me to replace their page-after-page of incomprehensible legalese with something short, plain, and understandable. I am pleased to do it and, as a result of my experience with the Smiths, have completely changed the templates I use for estate planning. My estate planning forms are now short and written in plain English.

How Lawyers Use Forms

I love forms. All lawyers love forms. We buy them, we trade them, and we steal them from each other. The forms we buy, steal, and trade are written for lawyers, not for regular people. When I first started practicing in probate I used the estate planning forms written by Valerie Vollmar, a professor at Willamette University. Lots of Oregon lawyers use her forms. Later in my practice, I switched to a national provider. At the time, I thought that my clients wanted more paper for their money and the national providers give you lots of pages. During those days, I created the kinds of paper bricks I now get paid to get rid of. Later I discovered that people didn’t really want all that paper and went back to Valerie’s forms. I used them until I met the Smiths. Now I have my own forms.

Once a lawyer is satisfied with his forms, he changes the names to accommodate the new client and writes just enough to personalize the plan for the client’s special needs. In the old days we bought the forms on paper and copied them. Today, it is all done by computers. I use OpenOffice and the data base program that comes with it. I fill in all the names and hit a button. The documents come up on the screen with the names filled in, and I tweek the document with my word processor to address the client’s individual needs. Some lawyers use Hot Docs to do this. Some lawyers go whole hog and use expensive national document production systems like Wealth Counsel or Interactive Legal. The big document production programs produce big documents. If your lawyer gave you a thirty page revocable trust printed on thick paper, it probably came from one of these folks.

Forms Sold Directly to Consumers

Some form providers market their wares directly to consumers. LegalZoom and Suze Orman’s online will and trust creator are probably the most advertised. These folks let you fill in the blanks yourself. I have never paid to look at their forms (Why would I? I have my own.) My sense is that they work okay if you follow the directions carefully and have the documents properly witnessed. I have seen wills made online that were perfectly good, and I have seen wills made online that were perfectly horrible. The drawback to an online lawyer is that you get the form, but you don’t get the lecture about how probate and estate planning works in your town. Law is local. I don’t get paid the big bucks because I know the general concepts I learned in law school or because I can fill out a form made by a company in Florida. I get clients because I know the attitude of the judges in Portland and can call the local probate coordinators by name.

Oddly enough, the forms sold directly to consumers are often more incomprehensible than the ones sold to lawyers. The forms sold to consumers by national providers need to meet the requirements of all fifty states. It is tough to write an understandable document that does that. Stevens-Ness forms are specific to Oregon, but read like they were written by an English barrister from a Dickens novel. I have no idea why.

Conclusion

If you are doing an estate plan, one way or another, you are going to be involved with forms. If you come to my office, I will be tinkering with the forms. If you buy your own forms, you will be doing it yourself. Doing it yourself is cheaper. At least at the beginning. Repairing the damage from bad estate planning documents is one of the most lucrative parts of my practice. Having a lawyer do it is more expensive, but safer. The choice is yours and depends upon the amount of risk you are comfortable taking.