Time for a Rant

OK, it’s time for a rant.

I have, to date, limited my postings in this space to useful information relating to legal topics, but lately I feel like the general level of civility in our society has taken a nosedive off a cliff and I have been at the bottom of the pit breaking the fall. I long for the kinder, gentler days when people had manners, and compassion, and something more than just a self-focused need to be number one at all times. For the most part I love my career and I love my clients and colleagues, but in the last year I have come across enough challenges that a reminder feels warranted.

So here are Judy’s top ten rules for the proper care and feeding of your faithful lawyer:

1. Be reasonable about deadlines. There is, for the most part, no such thing as a real estate or estate planning emergency. If your children are 10 and 8 and you have not had a will for the duration of their lives, don’t suddenly remember 3 days before both parents are scheduled to get on a plane together that you forgot to do a will and expect your lawyer to be able to produce an entire estate plan in 48 hours. If you have a two-week deadline, don’t wait until the 12th day to hire a lawyer and then expect it to be done on time.

2. Be faithful. If you have a relationship with your lawyer, and you are happy with that person’s service, trust that (s)he will be there for you. Don’t go off and hire someone else if (s)he doesn’t return your phone call within 3 hours of your sending an email.

3. Listen to your lawyer’s advice. If your lawyer is recommending a certain course of action, it should be for your best interest, so don’t then go off and do something completely contrary to that advice without at least discussing it first with your lawyer. And for goodness sake, stay away from legal forms found on the internet!

4. Respect your lawyer’s or colleague’s work product, documents and other written materials. As Abraham Lincoln once said, "a lawyer’s time and advice is his stock in trade". If you have work product in your possession, don’t clone it for your own use without consent, or make changes without notification, or otherwise use the work product in ways that are inconsistent with the lawyer’s intentions.

5. On a related note, don’t expect free advice. If you call or email your lawyer to "run something by" him or to "pick her brain" on a topic, expect to be billed for that. Even if it’s a 10 or 15 minute phone call, those small increments can add up to a lot of uncompensated time.

6. Understand that your lawyer cannot control all events in a transaction and is not responsible for everything that happens. If you sign a contract to buy a house that requires you to borrow more money than you can qualify to get, or more cash than you have in the bank, it will never be the lawyer’s fault when the deal falls apart, as much as you might like to blame him/her. Do your homework, be prepared, and take responsibility for your part.

7. Respect that lawyers are people too. They have spouses, and children, and aging parents, and aging bodies that sometimes need medical attention, and other obligations that sometimes interfere with their ability immediately to return a phone call or an email, or produce work product. If you have no actual deadline, and your lawyer is generally responsive, cut them some slack when necessary.

8. If you are another lawyer in a transaction, don’t make it personal. The actions of a good opposing counsel are not (or should not be) personal, but instead simply the zealous representation of the client’s interests are required by our canons of ethics. Maintain civility.

9. Institutions, this one’s for you: don’t make your attorney do all the work for the same transaction multiple times. There is nothing more frustrating than spending two hours preparing a closing only to be told there is an error in the documents and everything will have to be done again. Do your homework in advance and respect your attorney’s time. And if due to some unavoidable event a big chunk of work has to be duplicated, then at least have the courtesy to apologize—and mean it—instead of just assuming we have nothing better to do but clean up after your mistakes.

10. Be nice. No matter what, there is just no reason not to be. And everything is easier when you are.

Annuities and Estate Planning

I am often asked by my older estate planning clients what they can do to protect their assets in the event they need to enter a nursing home. Under the regulations governing Masshealth financial eligibility, many assets would need to be spent down to pay for such care before benefits would accrue, but certain assets are exempt from countability. Once excellent way to protect assets for couples where one spouse is in the community and the other is in a nursing home is by the purchase of an annuity. While the payments from an annuity are countable as income, the community spouse may use excess and otherwise countable assets to purchase an immediate, irrevocable monthly annuity, and the purchase of such will not be considered a transfer which disqualifies the institutionalized spouse from eligibility for Masshealth benefits so long as the technical requirements of the regulations are met. The term of the annuity may not exceed the annuitant’s life expectancy and should generally be as short as possible. At the end of the term, when the annuity converts to cash in the name of the community spouse, that cash will not be considered a countable asset. Of course, if you are considering the purchase of an annuity as an asset protection technique, you should seek the advice of competent counsel to advise you on the necessary terms and procedures, but consider the use of annuities as an effective estate planning and asset protection tool.