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.

How to challenge a will - undue influence

All the action, when it comes to challenging wills these days comes under the label “undue influence.” Undue influence is hard to write about because it is hard to understand. All wills are the result of influence. We influence people by being mean to them, or being nice to them, or by simply being related to them. But some influence is “undue.” And undue influence can undo grandma’s will.  

In this section, I will talk about undue influence in Oregon. I won’t truly explain it  because the concept of undue influence confuses even the lawyers who practice in this area. It probably can’t be explained. It can, however, be talked about.

 The theory is that if a will, or a trust, or even a gift is the result of undue influence, then the will or trust or gift, is not the true wishes of the elder, but instead reflects the wishes of the person exerting the influence. Grandma appeared to want to give her estate to cousin Harry, but in truth it was only because cousin Harry used underhanded means to convince her that she should do it.

In undue influence case, the focus is not on the mental state of the elder -- as it is in capacity cases -- but rather on the behavior and the intent of the person who received the benefit. If cousin Harry was visiting grandma every day because he loved her, he is entitled to the inheritance set out in the will. If he was visiting her every day to get money out of her, the will could be declared the result of undue influence and therefore void.

The problem is that nobody knows what happened during all those visits between grandma and cousin Harry. Harry is never going to say the visits were anything but expressions of love. This was unacceptable to the courts so so they developed the concept of a “confidential relationship.” The label, “confidential relationship” is no more clear than “undue influence.” In general it means that the elder put special confidence in the person who received the gift. The person might have been the agent under a power of attorney. The person might have been the primary caregiver, or someone who helped the elder with finances. We lawyers have to figure that anyone who was close to and trusted by the elder had a confidential relationship.

The rule was established that if there was a confidential relationship and certain other “suspicious circumstances,” then the person who received the gift--cousin Harry in our case--has to prove that he did not exert undue influence. Unless he proves he didn’t do it, the will fails. That is a tough thing for Harry to prove.

There are seven suspicious circumstances. Here is the list as it relates to cousin Harry.

• Procurement: Did Harry drive grandma to the lawyers office?
• Lack of Independent Advice: Was grandma’s lawyer Harry’s lawyer before he met grandma?
• Secrecy and Haste: Was grandma’s last will done just before she went to the hospital and then hidden from other family members?
• Change of Attitude: Had grandma’s stopped communicating with her children after Harry started to visit every day?
• Change in estate plan: Had grandma’s previous wills all given significant amounts to the church or her children?
• Unusual gifts: Was the gift to a cousin like Harry not what you expect most people to do?
• Susceptibility to influence: Was grandma weak and dependent upon Harry when she wrote the will?

A person claiming that a gift was the result of undue influence, doesn’t have to show all the suspicious circumstances, and nobody really knows how many have to be there. If the person can show a confidential relationship--that cousin Harry had some influence over grandma--and that a couple of the suspicious circumstances existed, then Harry has to prove that he didn’t unduly influence grandma.

The attitude of probate litigators is currently that the undue influence rules let the judge pick the good guys and bad guys. The legal concepts are so muddy that a lawyer is best off simply attacking the character of the person on the other side. The children of grandma will portray Harry as a money grubbing relative showing up in the last months of grandma’s life looking for a payday. Harry will show that grandma’s children had abused her so badly during her life--finally abandoning her when she required care--that she would rather have flushed her money down the toilet than leave it to them. It is a legal free for all.

How do you avoid having a will, trust or gift set aside on the ground of undue influence? There are a few things that can be done. Make sure grandma always has her own lawyer -- one who is chosen by her and is not also the lawyer for other family members. Don’t accept large gifts from old people. Don’t go to Office Depot and buy documents for old relatives to sign. Don’t be a joint signer on the accounts of old people and don’t manage their finances for them unless everything you do is supervised by an independent professional. For most families, those things are impractical.

What can I say? Undue influence, as a way of setting aside transfers by the elderly, is a gold mine for lawyers. The concepts are so vague that when the cases come to court, anything goes. One probate practitioner commented that personal injury cases worth over a hundred thousand dollars are reasonably rare, but middle class estates worth more than that are filed every day. With something as flexible as undue influence to work with, his caseload was always full.

The Oregon Elder Law Blog in book form

The posts to the Oregon Elder Law blog from its inception to the end of 2010 are now available in book form. If you read this blog, there is no reason to buy the book, but if you want a paper version or have acquaintances who are not comfortable with computers, Oregon Elder Law, the book can be ordered from Amazon here. The book is a lightly edited version of what has appeared in this forum. If ordering from Amazon makes you uncomfortable, you can also buy a copy by calling my office.

How to challenge a will - testamentary capcity.

In my earlier post I wrote about how a will can be challenged if it was not properly signed an witnessed. In this post I will talk about challenging a will because the person writing it did not have the metal capacity to make a will.

In order for a will to be valid, the person writing it must have what is called “testamentary capacity.” That means the person must be able do four things. Those things are:

• Know the “natural objects of his or her bounty,” In practice this means the person writing the will must be able to name his or her her children without prompting.
• Know the nature and extent of his or her property. This means the person must be able to describe in general terms what he or she owns.
• Understand that the person is signing a will.
• And know what the will accomplishes. The person must know who will get his or her money under the terms of the will and who has been cut out.

The standard for legal capacity doesn’t require much of a person. The only lower standard in law is that necessary to get married. There are two common reasons why an elder might not be able to do the four things described above. The first is delirium. The second is dementia.

Delirium is a loss of cognitive ability due to an illness or as a side effect of drugs. Most elders who have a serious enough medical condition to put them in the hospital will be suffering from delirium. If they get better and off the drugs they are receiving, the delirium will go away, but while in the hospital they will seldom have the cognitive skills necessary to devise, read and understand a will.

The law recognizes “lucid intervals.” A lucid interval is a period of time in which a person who generally does not have testamentary capacity comes out of it long enough to write a will. Not surprisingly, when the family and lawyer show up at the hospital to present Aunt Nell with new will, they find her in the midst of a lucid interval and ready to do a new will. Geriatric psychiatrists think this is a bunch of crap. If the person doesn’t have the capacity to get out of the hospital bed and get down to the lawyer’s office, there is a good chance he or she doesn’t have the capacity to understand a will.

Elders can also suffer from dementia. Dementia is a general term for loss of cognitive ability. It can be caused by Alzheimer's disease, small strokes, alcoholism, or other medical conditions. Unlike delirium, dementia does not get better.

Dementia can be hard to spot. One of the reasons for this is that a person’s conversational and social skills are often the very last skills to go. An elder may be able to have a very pleasant conversation with you, yet be completely unable to make the kinds of judgments necessary to manage money or devise an estate plan. In the past, mental health professionals used the mini-mental state exam to measure cognitive loss in dementia sufferers. That exam has gone out of style and most mental health practitioners currently use the SLUMS. The SLUMS is a test that relies less on memory and orientation and focuses more on the kind of decisions used in analysis and decision making. Neither of these tests can tell you whether a person can do the four things necessary to write a will, but they do give a quick summary of a person’s reasoning skills.

If a will is admitted to probate, it can be challenged on the grounds that the person who signed it did not have testamentary capacity. By this time, however, the person who wrote the will is dead. The evidence of capacity will have to be obtained from witnesses and medical records. If the will was written by a lawyer and signed in the lawyer’s office, the person challenging the will have a tough time of it. The lawyer will testify that the person appeared to have capacity, or the lawyer wouldn’t have written the will. 

On the other hand, the presumption about lawyer-written wills is not as strong as it used to be. If there is strong medical evidence that the person who wrote the will could not have had testamentary capacity, the case for overturning the will may be a good one even if a lawyer was involved. Challenging wills is a complicated legal job. You need a lawyer, and preferably someone who has done it before.

Not a lot of wills are challenged on the grounds that the person who signed it did not have capacity. Most people who want to challenge a will look to what is called “undue influence.” That will be the subject of my next post.

     
   

How to Contest a Will - Part 1

I get a lot of questions about contesting wills. Some people want to know if they can challenge a will made by a relative. Some people want to know if a relative will be able to challenge the their will. In practice, wills are hard to challenge. A will is meant to express the wishes of the person who signed it, and probate judges are dedicated to seeing those wishes carried out.

There are three ways to challenge a will: (1) it was not signed and witnessed as required by law, (2) it has been revoked, and (3) it did not, in reality, express the wishes of the person who signed it.

In this post I will talk about proper signing and revocation. In the next post I will discuss how to challenge a will because it does not express the wishes of the person making it.

Was the will signed and witnessed correctly?

Wills must be signed by the person making the will and the signature must be witnessed by two people. The two witnesses must sign a document stating that they witnessed the signature of the person who made the will. The witnesses must sign that document before the person who made the will dies. The witnesses don't have to sign at the same time as the person making the will, but if they wait until after death it is too late. Lawyers bring witnesses into the will signing and have everybody sign at the same time. They never screw that part up. Non-lawyers who write their own wills or get wills off the Internet often fail to have the will properly witnessed. That makes the will scrap paper.

(Lawyer usually attach to a will something called a "self-proving affidavit." That is a document that makes the will easier to get admitted to probate, but it is not required to make the will valid.)

There are no exceptions to the rule about witnesses. You can't get around it by doing a handwritten will. In addition, changes to a will -- called codicils -- must also be witnessed. That means you can't make additions and deletions on your will unless each change is also witnessed. If you are going to make changes, you should probably just make a new will.

If a will is not signed and witnessed, it is invalid. It is invalid even if you can prove that the will accurately expresses the wishes of the person who wrote it. If the will is invalid, the person who wrote the will is considered to have died without a will. I have written previously about what happens when you die without a will. You might want to look at that post.

Has the will been revoked?

Most wills begin with the line, "This is my last will and I revoke all prior wills made by me." A will is normally revoked by a subsequent will. A will may also be revoked by being burned, torn, canceled, obliterated or destroyed by the person who made it. If a person dies and his will can't be found there is a presumption that it was destroyed.

A will is revoked by a subsequent marriage if the new spouse outlives the person who made the will. If you have a will and get married, you should write a new one.

If you receive a notice from the court that the will of a relative has been admitted to probate, and you believe that it was not signed correctly, or that it had been revoked, you can challenge the will by filing your challenge with the court. This is not a job for amateurs. You will need to retain a probate lawyer to evaluate the challenge and prepare the court filing for you.

Next Post: Challenging a will for lack of capacity or undue influence.