Spring Break Checklist -- Lawyer Style

Image by M. Gustafson Gervasi, 2013 -- Door Co., Wisconsin 

It's that time of year.  Daylight last a little longer, snow begins to melt, spring bulbs search for blue sky, and people seek warmer locales to spend 5 to 7 days relaxing.  Spring breakers travel checklists most likely include: set up pet sitter, cancel newspaper, get spending money, pack swimsuit, etc..  And then there are lawyers who travel, especially estate planning lawyers.  Before we head out the door, there are a few things that come to mind:

1. A copy of the power of attorney for health care -- the document that gives another person authority to make medical decisions if I am not able to.  My documents were drafted here in Wisconsin, and should be recognized in any state where I am traveling.  Just as they'd recognize my marriage license, they should recognize this legal form.  Without one on hand, it becomes a scavenger hunt if I am sick or hurt.  It is on my "pack list";
2. Emergency contact to take care of pets if you are delayed due to illness while traveling.  Many people know cats are independent for a few days.  But what happens if your 4 days on the beach turns into a 2 week hospital stay?
3. Contact numbers left on paper.  Yes, your phone is really smart and has all of your friends, relatives, etc. listed including addresses and phone numbers.  What happens if that smart phone is damaged or cannot be found and you are sick.  I leave a list of numbers on top of our estate planning binder: sitter, trustee (if both parents die), Personal Representative.  None of whom know one another.  How hard would it be for loved ones to piece these contacts together for you?
4. Name and location of the preferred doctor / urgent care / hospital for your health insurance.  Spring break tends to fall smack dab in the middle of flu season.  Where will you go in the middle of the night if an ear infection strikes?  Save money and stress by spending 15 minutes collecting this information before you leave for fun in the sun!

Thanks for reading, and where ever you will be over the next few weeks, enjoy the arrival of Spring weather!

Book Recommendation: The Day My Brain Exploded

When you are the parent of young children, you protect your sleep like a mama bear her cub -- fiercely.  Yet this past week I routinely found myself reading far too late into the night.  Why?  In my hands was a memoir by Ashok Rajamani.  With the title The Day My Brain Exploded I should have known that he would grab my attention from the start, and he did.

Quite the storyteller, the book is not a chronological account of an AVM (brain bleed) and the resulting consequences.  Instead it is the memoir of a young man, who at age 25 comes ever so close to death.  Chapters jump from after the AVM, to the day it occurred, to his youth in Illinois, back to present time, back to his birth in New Jersey.  It may appear chaotic, but the story unfolds like a flower blooming.  Powerful, hardcore honesty, and humor all make this a book I would recommend to anyone.

Life has a way of happening.  The unexpected arrives.  Course changes direction, headed down a path we'd rather avoid. But, in his case, life continued.  He was fortunate.  And his story reminds me, and I'm certain others, that we are all fortunate as well.  Knowing life is short, I won't recommend books that I find a waste of time.  I will recommend this one, and even for those who run a little short on sleep due to work, family, or all of the above.

And thanks to Ashok for opening up and sharing so honestly.  Shocking, amazing, powerful -- it makes for a superb book.

Your Financial Planner Did What? A lesson on how to get your attorney's attention

Monday morning had arrived.  A cup or two of coffee already enjoyed, my first meeting of the day arrived.  It was a third meeting for the clients, meaning it was the day they would sign their completed estate plan.  Immediately upon meeting this couple, I knew they were lovely people.  My guess was confirmed when the she of the couple brought out fresh baked blondies (think brownies, but with chocolate chip cookie batter).  Here, these are for you!  That made me smile, but here is what caught my attention and made me choke on what was my third cup of coffee.

Papers signed, witnessed, explained, and tucked away.  She was putting things in her bag and said to her husband, "tomorrow we meet with the financial guy about that annuity."  Then she turned to me and said, "what do you think of those?  He is creating a joint one for us."  The word "joint" is what caused me to spit and sputter.

Image by M. Gustafson Gervasi, 2012

Originally posted on Frugal Upside - A Frugal Cafe au Lait

Joint!  Wow, wait, he created a what?  Why the drama, they were married after all.  The key is 1) it is a second marriage, for her; and 2) I had created a testamentary spousal trust.  That means when she dies her share of the estate will pass to an irrevocable trust.  Her husband can enjoy it, but not undo it by mistake and or intention.  It will lock in distribution upon his death to her daughters.  And a joint annuity would likely pass to him upon her death, never falling into the trust we created, in a word nullify everything!  Thank goodness the financial planner didn't work on Monday, they saw me before seeing him.

I am not the only attorney to sputter upon hearing about plans created by a financial planner.  The state bar list serve is cluttered with rants about how a well-crafted estate plan is nullified (aka shot to hell) by a well-meaning financial planner.  Lawyers are trained to think three steps down the line, imagining horrible scenarios, and planning accordingly.  It is both a gift and a curse.  We are not happy campers when those plans are blown to bits.

But it is life, and it happens.  I do my best to educate my clients about how to maintain their papers once they leave my office.  I tell them to call with any questions "I don't pick up the phone and follow-up with a bill for a twelve minute conversation -- I can't do my job advising you if you are afraid to call me".  Once they are out the door, all I can do is blog, hope, and maybe,  just maybe those road maps for disasters will remain in place.  So, if you want to get your estate planning attorney's attention, just remember, start by quoting your financial planner.

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Why I Will Never Nominate My Child as Personal Representative of My Will

A highly unusual scenario transpired in my office this week.  After signing the last form, a personal representative walked out of my door, arm in arm, with her sister.  In town from the west coast, the two were laughing and off to shop for jeans at Hilldale mall.  The death of a parent brought them together, not at odds.  A rare sight indeed!

Sadly I see the death of a parent, especially the mother, rip sibling relationships apart.  People toss the F-word around.  I get calls about "my sister isn't being far and won't tell me anything".  There are a set of brothers who will no longer speak because of an chest of drawers that could not be divided into two shares.  Even when the kids were relatively close prior to the death, one child acting as PR establishes a hierarchy.  Suddenly one sibling says "yes" or "no", bam -- he or she is in charge.  And with that comes many things.  Unresolved tensions from childhood, insecurities, a feeling of inequity that may have never been felt before, the weight of handling everything, the burden of being the "responsible one".  You get the picture.

In my mind a sibling relationship is a true gift. One so precious that I as a mother, who happens to be an estate planning and probate attorney, will never appoint either of my children as a Personal Representative.  There are alternatives.  It may seem distant to go beyond the immediate family, in my mind it is worth it to preserve the delicate nature of sibling love.

So, if not your kids, than who?

• Your CPA;
• A division of your bank;
• Someone in your circle of family and friends who has a mind for finances and a good relationship with your children (for example, my best friend from college who is like the sister I never had).

In addition to nominating people, I will take great effort to be as exact as possible in my directions.  Who should inherit my wedding ring for example.  The more I put down on paper, the less "control" or authority my PR will have.  They will simply be executing my wishes.  Children follow a parent's written wishes far better than when someone is telling them what to is happening.

Thanks for reading.  And remember, a blog is not a lawyer.  Please seek advice from an attorney licensed in your state.

The author's children -- who wouldn't want to take efforts to keep this connection in tact?

Taken September 2012 by M. Gustafson Gervasi

Sad Follow-up to Guardianship Post

Unfortunately, the story I mentioned in my last post about a baby being delivered via c-section after his parents were killed in a car accident while going to the hospital, has an even sadder development.  The baby lived only one day, dying the day of my post.  My heart goes out to the families involved.

The Importance of Naming a Guardian For Children

Parenthood brings many new responsibilities to a person's life.  Selecting a car seat, setting up a college fund, baby proofing the house, and the list goes on.  Unlike many new parents, my husband and I had a will in place prior to the arrival of our first child.  And in that will, we named a guardian.  Given my line of work this is probably not too strange.  But a recent news story out of New York underscores the importance of planning.

While riding in a cab to the hospital an expectant couple, both 21 and married not quite a year, were killed in an accident.  There unborn child was saved when the hospital performed a c-section.  Saved, but no has no parents.  Who will raise the baby?

From my experience the biggest roadblock to creating a will (the only legal way to nominate a guardian) is indecision about who to name as a guardian.  No answer will be perfect because no one can literally replace you.  But naming someone is far better than leaving the issue open for argument, and possible legal challenges.  Emotions would be running high, and none of that is ideal of a child or children.

Here are the points I recommend, based mainly on being a mom who writes wills:

1. Who shares your views on lifestyle (think finances, religion, education, social values);
2. Who has the time and energy to parent a child (doctor appointments, field trips, middle of the night wake up calls);
3. Does the person live in a place you would want your child raise?
4. Who spends a lot of time with your child and is close with him or her?
5. Does your child (assuming older kids) have a preference?

Remember, a blog is not an attorney.  It is best to consult a lawyer licensed in your state for advice specific to your situation.  Hopefully this post got you thinking a bit about an issue many parents have not addressed.

M. Gustafson Gervasi, 2008, Author's first born child.