Caring Attorneys

Recently, I did a screening of my film, Caring for Dying, for a group of South Bay estate attorneys. I learned a couple of things worth passing along. The lawyers were not anything like the wizened, vampirish lot depicted in Dickens’ Bleak House, who drain away your inheritance in legal wrangling until there is nothing left. They are actually committed to creating a plan that not only satisfies the final wishes of the client’s but also reduces the squabbles among the heirs.

Of immediate interest to me, is the estate attorney's relationship with the dying. I had never thought about it, but dying is often the state of the client when he/she finally gets around to making an estate plan. The term “estate plan” rather than “will“ is the term in vogue as other inheritance vehicles like “trusts” have gained popularity. “Estate plan,” more general than the term “will,” also cleverly conceals its association with death. People, however, do not seem to be deceived and, like everything else related to death, put it off until it is unavoidable. My dear friend Marianne did not get around to her “estate plan” until she was in the hospital heavily drugged on pain medication. I suspect she believed that writing her will was tantamount to giving up on life, something she steadfastly refused to do until the very end. Fortunately, she lacked sufficient property to inspire any litigative greed; by the time she composed her will she lacked the “sound mind” required by law.

Establishing “soundness of mind” is one of the hurdles a client and his/her estate attorney must get past in creating a litigation-proof estate plan. If you wait until you are dying, really dying like Marianne, that can become an issue. Of course those of you with children are probably on top of this, since you naturally want to make sure your children are cared for in the event of an untimely death. But those of us who have no immediate heirs may feel indifferent to the task until death is poking us in the eyes. This is not the best time to be making such decisions. Dying can be a very exhausting process and not conducive to clear thinking.

Another important concept relevant to an estate plan is “undue influence.” Undue influence is basically someone hanging over you while you are writing your estate plan and convincing you that their ideas are superior to your own. Others' influence prior to the actual creation of the plan, such as months of caregiving or other service is fair game -- although it can become a point of argument in a lawsuit when coupled with the issue of “soundness of mind.” For this reason the responsible estate attorney should meet the client alone when discussing the terms of the plan. Meeting alone is not always easily accomplished when the client is ill and fragile and has come to rely on family for support and communication and/or the family see itself as the client’s protector. The estate attorney must navigate the choppy waters of family dynamics always remembering who the client is. If the client is slow in thought and words and a helpful child is willing to translate, the waters can become very muddy indeed.

The likelihood of a contested estate plan is greatly increased when substantial property is involved (i.e. enough property to warrant the expense of an attorney) and the division of property is uneven, or perceived as uneven, by the likely heirs. There are some tricks for discouraging litigation but even these are not failsafe. (see Phillip Campbell, Esq.’s article Bulletproof Estate Plans)

This concern about undue influence made me wonder about my own family experience following my mother’s death. While there was never any threat of litigation, there was plenty of dissension and even a family split that never truly healed. Might this have been avoided had my mother used an estate attorney instead of her attorney daughter? Certainly it would have cost more, but would it have been worth the price? There’s nothing quite like an impartial third person to reassure us that the plan, if not what we hoped for, was according to the wishes of the one who made it. Something to bear in mind if you have children.

What most humanized estate attorneys for me was hearing about their skill in balancing the social needs of their client -- which could be considerable after weeks of lying in bed -- with the more onerous task of creating the estate plan. California law requires that estate attorneys charge “reasonable fees” for their services. They simply cannot charge for all the hours they invariably spend at a client’s bedside, or the bill would quickly become unreasonable. One estate attorney recalled having to forfeit numerous weekends, while working for a large firm, to make up the “billable hours” that were lost while listening to client stories. I was impressed by her generosity and care for her clients and at the same time wondered if this balancing problem was specific to FEMALE estate attorneys. Might they not be more readily cast in the role of caregiver and taken advantage of? I could imagine a very business-like MALE attorney deftly silencing his client’s outpouring with a stern glance. But apparently I am wrong, it is a universal issue for all estate attorneys. When dealing with the dying, a certain amount of nonbillable time appears to be inevitable so that the necessary trust and required dialogue unfold.

Please share your thoughts and experiences with estate planning. Have you formalized any plans yet? If yes, how did you go about it? If not, how likely are you to use an estate attorney in making your plan?