Frequent Questions
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WHAT IF I BOUGHT A POOR QUALITY PLAN?
This can easily happen. There are many seminars where smooth-talking salesmen convince many people to purchase very poor-quality legal plans. Of course, they don’t say how poor their plans are. They talk instead about how they have some sort of “secret” plan that attorneys don’t want you to know about. Sometimes, they talk of things as new that are really very old. One sting recording showed a salesman saying that President Reagan first allowed persons to have living trusts, while trusts were actually in use before the time of Henry VIII almost 500 years ago. There are also seminars that offer “free” legal plans if you purchase one of their investments. As the old saying goes, you get what you pay for. Generally, these packages give you no real options. Instead, you have to accept some cookie-cutter plan with your family’s names added in. You wouldn’t purchase an entire clothing wardrobe designed for the “average-sized” American as some of the measurements are likely to be off for you. Likewise, you cannot assume that an “average” plan is what makes the most sense for you and your family. Also, from my personal experience, the quality of these plans is not very good. They typically charge more than high-quality attorneys and provide poor quality.
While many people purchase products after attending ones of these sales meetings and are very happy, believing they have made life much easier for their spouses and children, what they don’t realize is that they may have put themselves at great risk. Most of these products include trusts and make a family member a successor trustee. Trustees who fail to fulfill their duties are personally liable for any harm done and most of these poorly written trusts actually encourage trustees to violate rules. I assume that the drafters don’t really know the law, but the harm is there whatever the reason for the poorly written rules. These products can also cause great difficulties while the purchaser is alive.
I have been presented numerous seminars on the dangers of these plans at many sites in Michigan, from Wyoming to Ste. Clare Shores. Some of the handouts are available to download on this web site.
If you have purchased a poor quality plan, what can you do? There are basically two questions:
- Should you have better legal documents prepared?
- Can you get your money back for the products you purchased?
The first question has no uniform answer. A broken watch is correct twice a day and it’s possible that the plans are acceptable for your needs. The only way to be sure is to consult a knowledgeable attorney. It may seem strange, but a thorough review of documents might actually be more expensive than getting things done right from scratch. The reason for this is that it takes more time and knowledge to determine what the results could be from a poorly written passage, which might be contradictory and leave information out, than to write clearly. To determine how courts and businesses would react to confusing passages might require a fair amount of research.
Before I could tell you whether a legal document expresses your desires and meets your needs, I have to talk with you and learn what your needs and desires are. Once I know that, I can usually create plans for you more quickly than I can analyze long, poorly written documents in order to see if
- They express your wishes and needs
- They contain everything they have to
- They do not have anything in them that is contrary to law or otherwise dangerous to you and your family
- They are not overly confusing
There is no uniform answer to the second question either. In my experience, virtually all of the legal products sold at seminars involve transactions that violate some law, some licensing requirement, or some ethical rule. Sometimes it is relatively easy to discover the violations; sometimes it is harder. Research, contacting the sellers, and possible litigation all take time and money. However, sometimes, there are things that can be done relatively efficiently. In my experience, a well-written letter explaining the risks to the seller if the money isn’t returned is usually sufficient. If not, then costs have to be considered carefully. In most cases, some governmental agency will not recover the money for you. Therefore, you would have to pay me or another attorney and we would want to set definite limits on how much you would want to spend. Your goal is to get your money back not to spend more than that just to vindicate your rights.
If you do decide to see if you have any remedies, I can offer a breadth of experience. Having taught and lectured in these areas for over 10 years, I am very familiar with probate law, consumer law, the criminal laws dealing with financial exploitation and scams, and administrative laws involving licensed professionals. I have given presentations on these topics to many different groups. I cannot predict results, but a comprehensive approach is much more likely to be successful.
It is much better to avoid these problems, but hindsight is always much clearer than foresight.
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SHOULD I BE ABLE TO UNDERSTAND MY LEGAL DOCUMENTS?
Ideally, the answer ought to be “YES”. Legal documents generally don’t speak for themselves. Someone has to read them and act on them properly. If your document is of the sort that goes to a public official–such as a deed that goes to a register–then that public official and title companies ought to be able to understand it and act appropriately. Even in those cases, you ought to understand some part of the document or you might make a terrible mistake. For example, you probably don’t want to deed property to your children as joint tenants with full rights of survivorship. That means that they would all have to agree before it can be sold and that otherwise the last one alive would get it all.
Where understanding is more important is for planning documents, such as wills, trusts, powers of attorney, and advance medical documents (to allow someone to speak to the doctors in case you cannot). Although theoretically these could be interpreted by a judge, that happens very rarely. Generally, it will be you, your chosen agents, and any third parties they show the documents to that will have to understand and apply them. In general, a good rule of thumb is that if you cannot understand them, then other people won’t understand them either. If they aren’t understood, they probably won’t be used correctly, which could cause great problems for you.
Attorneys have a well-deserved reputation for obfuscation, rather than clarity. Some people actually believe that documents are more impressive if ordinary people cannot understand them. Fortunately, those beliefs are becoming increasing rare. More attorneys are attracted to ideas like writing in “plain language”. Of course, it’s one thing to want to write plainly, but quite another to be able to do so. I used to conduct training programs at the University of Michigan for foreign students who wished to serve as teaching assistants. I learned that it takes considerable knowledge of the field and considerable skill in communication in English to be able to express something simply and plainly. Merely repeating what others have said and written is not a good explanation.
Even plain and simple isn’t always enough. Documents should also be usable. Even if every sentence is simple, a reader needs to be able to find the answers to the questions she has quickly.
I have a Ph. D. in linguistics and considerable expertise in research and training in effective communications. Even so, expressing things plainly in a usable manner can be a major challenge. Some things are much more difficult to explain than others. I cannot promise that you and your agents will never be confused, but I can promise that I will work with you to understand the misunderstanding so that your questions are answered to you satisfaction. The success of legal documents is measured by how they are used and unless they are understood, the odds are pretty low that they will be used successfully.
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WHAT AGE SHOULD AN ELDER LAW CLIENT BE?
This is a rather confusing point. There are very few laws that apply only to older adults. Even age discrimination laws apply to people forty and older, and forty certainly isn’t elderly. Many benefits that seem to be age related, such as Medicare, are actually available for persons with disabilities at any age.
Perhaps even more important than this is the recognition of a need for planning. The tragic story of Terri Schiavo was in the news for several years. When news coverage was at its peak in the last few months of her life, the State Bar of Michigan referred the news media to me, because of my expertise in elder law. No one could have called Ms. Schiavo elderly at the time she died (in her early forties) or when she had her disabling heart attack (at age twenty-six). The reason they contacted me is that most people who think seriously about advance medical directives are older. This might not really make that much sense. If Ms. Schiavo had had a disabling heart attack at ninety-six rather than twenty-six, there would not have been as much controversy about terminating life support. Almost all of the famous cases in Michigan and nationwide about disputes over life support involve people in their teens, twenties, and thirties.
All of us, at any adult age, ought to realize that there is a risk that something could happen to us which makes it difficult or impossible to manage our affairs. Please click here to read an article I wrote about why life planning is much more important to most of us than estate planning. I think that it’s important to spend time talking with someone with expertise to determine what is best for you and it is most likely that the persons who have that expertise are elder law attorneys.
In essence, whenever we plan we need to recognize that bad things can happen. My expertise in elder abuse and financial exploitation is highly relevant. We cannot simply assume that we will be immune from the horror stories that affect others. We can work together to craft the type of plan that is best for you and your family.
Of course, some people see elder law attorneys not so much for themselves but for others. Anyone interested in the welfare of an older adult should consider talking with an elder law attorney about these matters.
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WILLS, TRUSTS, NEITHER, OR ALL OF THE ABOVE?
Some of the advertising I see and hear about estate planning services is simply amazing. I called another attorney and while I on hold I heard the sales pitch “Everybody needs a trust.” That is simply not true. Do you remember the old ad line “Every body needs milk”? The milk producers had to change that slogan because some people have severe milk allergies. Trusts might not cause allergic reactions, but in some situations they can be very dangerous for the grantor (the person who creates the trust) and for family members they ask to serve as trustees later. For example, under current policy it is impossible to qualify for Medicaid if one’s home is placed in a trust. Trustees are subject to personal liability for violating laws, even if they were doing exactly what the language of the trust told them to do.
I have been a presenter in a program sponsored by the the state AARP, the state Attorney General, the State Bar of Michigan, and the state Office of Financial and Insurance Services which has attempted to educate Michigan consumers on how to make a wise choice in estate plans.
There is simply no uniform answer to what kind of estate plan a person needs. That is really just as silly a question as asking “What play should the Detroit Lions call on every down?” The best football play call depends on the situation. The best estate plan depends on your situation.
The three most common estate planning techniques are wills, trusts, and beneficiary (transfer on death) designations. They all have advantages and disadvantages. Most of us are probably better off with a combination of two of them or maybe all three. It is interesting that the one whose importance is growing the most rapidly is the one that attorneys tend to talk about the least–naming beneficiaries. More and more of our wealth is held in assets for which we can name beneficiaries. Fewer companies are offering defined benefit plans (traditional pensions). More are moving to defined contribution plans (401k, IRA, and others). We can name beneficiaries for any remaining funds in these defined contribution plans. We can name beneficiaries for bank accounts, certificates of deposit, and most mutual funds accounts. It is even possible to write a transfer on death deed for real property.
In deciding the right mix for you, many factors need to be taken into account such as
- Do you worry about creditor claims? Creditors have the easiest time seizing trusts, next are wills, and have the hardest time with beneficiary plans.
- Do you need to have someone officially in charge to set rules? You have that with wills and trusts but not with beneficiary plans. With beneficiary plans the property is transferred automatically to beneficiaries.
- Do you need continuing management for a beneficiary? A trust is generally best for that.
The important advice is that this is something you need to think about carefully and get expert advice. Don’t rely on advertisements or assume that what works for your neighbor or worked for your uncle is necessarily best for you.