It's All About the Interview - - 5 Must Ask Questions for Prospective Estate Planning Attorneys

Hiring an estate planning attorney requires research, understanding, and sometimes some luck to find the right fit.  We strongly encourage that the selection process include a preliminary telephone interview with the prospective firm or attorney. During that interview, we suggest asking questions that really help you understand their process and their services. Below are five questions that we think get you the information you need in making your decision.

(1)  How much do you focus your practice in Estate Planning matters?  This is important and often unasked question.  The answer to this question may give insight into how experienced the attorney is in estate planning matters.  Arguably the best indicator of experience in a practice area is to regularly practice in that area of law.  This question gives you a gauge for how often the attorney deals with estate planning.  It also gives you a preliminary answer into how well the attorney can deal with more complex issues of estate planning.

Some people would encourage getting quantifiable data from the attorney.  For example, asking questions like “What percentage of your cases involves estate planning work?”  While it would be nice to receive reliable quantitative data on how often the attorney or firm handles estate planning matters, the reality is that most people cannot accurately provide that information.  Moreover, there are numerous factors attorneys could use to provide that information, which would require you to ask more questions to get a more accurate picture.  That makes these types of questions deceptively difficult to analyze and evaluate.

Furthermore, you should also make sure that you can understand their response to your questions you ask.  As Albert Einstein said, “If you can’t explain it simply, you don’t understand it well enough.”  Granted some concepts of estate planning are complex, but an experienced attorney should be able to explain them to you in a way that makes it understandable to you.

The goal of this question is to determine whether it sounds like the practitioner works in estate planning on a regular basis.  Having that information is crucial to process because you want someone who will understand your goals and be able to come up with a plan to achieve them.

(2)  What experience do you have with situations similar to mine?  No one situation is the exact same and it is important to understand your unique goals and objectives.  Not all planning issues are ‘typical’.  Often there are differences between plans based on personal information and life situations.  Our goal is to be able to tell you that we have experience handling situations similar to yours, or to see that you get to someone that can.  In this way, we anticipate that we are serving you either way, either by doing the work, or by referring the work to someone specializing in a highly specialized area that can better assist you.  You don’t want to waste time needlessly searching for answers, and we don’t want you to have to do that either. Since we have expertise with many different types of estate planning issues, we also know who else is working in these areas and has expertise as well, and we can help shorten your search.

Additionally, some potential clients call in and say, this is what I want done.  That’s great

(3)  How much would estate planning cost?  Cost is an important factor; however, it is not always the cost of doing the work that is most important, so long as costs for estate planning seem reasonable for the work performed.  Also, the actual cost of estate planning varies based on what options or choices you make, and these choices can not be made without first exploring and understanding your options.  We seldom talk with clients that are already completely informed on their options and needs in estate planning goals when they call. 

So, focusing mostly on costs is a mistake, though cost is an important consideration.   However in every case you should be apprised of the cost to complete your plan before you have committed to do the work.  At the same time you should know your options too. 

Our firm generally provides an idea about costs in advance, but we can not provide complete information about the type of plan before meeting with the client. Unfortunately, a 10-minute telephone call isn’t enough time to provide a definitive answer.  But that is also why we offer free consultation for estate planning clients before entering into a contract, so we both better understand the clients’ needs before there is an agreement for service.

Ultimately, most firms will work with you to develop the best solution.  Just make sure that you are clear in your expectations on how much it will cost, and communicate your expectations after you know your options and before you enter into an agreement for services.  Also, it should be a written agreement.

One final note regarding costs, always remember that most of the time the cost of not doing the work or doing inappropriate work is more expensive than the initial costs of appropriate estate planning.

(4)  What services are provided?   This is the flip side of the cost question above.  You have to know what is included in the service.  This, again, requires that you know your options.  However, if someone provides a price for a ‘simple will’, and stops there, you can be pretty sure this is not their area of expertise.  They are not evaluating your needs, and as such, they are not helping you plan your estate even though they may produce a Will. 

We think an alternative way to think about this question is to ask “what is estate planning”.  We believe estate planning includes a discussion that imparts knowledge to you.  After you have completed your planning you should understand what your estate planning needs are, and what they are not.  You also should understand what your role is in your planning, and how to make changes or pursue your own protection inside and outside of your estate planning documents.  So, an important part of the estate planning process is your conversation with your lawyer.  The documents are important too, but these documents do not in themselves constitute your estate plan; much of your plan is based on how you hold property and how you direct transfer of property inside and outside of estate planning documents. Sometimes the most important part of your plan is not financial, but based on your relationships and responsibility for others.

As to the documents provided by us in your estate plan, we believe in a holistic estate plan, and in the typical situation without special needs and without a Trust this includes a Last Will and Testament, possibly a Living Will, a Health Care Directive, HIPAA Waiver, and Financial Power of Attorney. There are common variations that include other documents, such as a pet trust or revocable trust, and sometimes changes in ownership documents to complete your plan.   

It is best to understand what you are getting for your investment.  We think your investment should include  a clear understanding of the estate planning process, your options, and what is reasonable to expect from us and required of you to accomplish your goals.

(5)  What can we expect in the future? Our goal is to build a relationship with you through life.  We don’t just focus on your current estate planning needs; we also pay attention to your future needs.  Goals change as life changes and we want to help with those changes. 

We strongly recommend you “audit” your estate planning documents every 2 years, in the absence of special circumstances, or even more often if there are special events or life-changing experiences occur.

Every 3-5 years, you should sit down with an attorney and review your documents and your goals.  We are implementing a process to help facilitate this review by sending letters and reaching out to remind clients of these targets. 

Some firms may view estate planning as transactional deals, as a one-time thing - if you’re interested in updating it, give us a call.  While that approach isn’t irresponsible or bad, our experience is that this type of work is often outdated when it is used unless it is disciplined by counsel’s active participation; we are working on developing a plan to provide this as a regular part of our estate planning service because of the challenges of dealing with outdated plans when they are used.  End of life events are stressful enough without aggravating them with outdated plans.  Further, the plan should be directed to also assist in other times of stress, such as disability and other significant life events.

Summary: There is no magic question or process to choosing an estate planning attorney.  However, we advise in general that you look at experience and conduct a short telephone interview to better understand your fit with the prospective law firm.  These are five questions we suggest you ask.  We work hard to help you now, and to develop a relationship with you so that you are comfortable coming back in 3 years, 5 years, or even 20 years.

The information contained in this entry is general and should not be applied to specific legal problems without first consulting an attorney.

© Copyrighted by Bale and Associates, Ltd. 592 Office Parkway, Suite B, Westerville, Ohio 43082.  Phone (614) 895-5600.  All Rights Reserved. March 12, 2015.Feel Free to visit our website to learn more about B&A

What is a Do Not Resuscitate Order and What does it Mean?

          Estate Planning generally is accepted to refer to planning for an end game, the end of life and what happens to your property.  However, it is more than that, and involves more than a Will.  One of the directives ordinarily discussed during estate planning with an attorney is “Do Not Resuscitate Orders”, also known as DNR Orders.

            When a person chooses a DNR Order they are saying they do not wish to have cardiopulmonary resuscitation (CPR) performed. In Ohio, the Ohio Department of Health has provided for two standardized DNR orders for the end of life.  A DNR Comfort Care Arrest Order will receive all medical treatment needed until the patient’s heart stops or their breathing stops.  At this time, only comfort care will be provided, and not resuscitation.  However, up to that time even resuscitation is provided. 

            A second type of DNR order is known as a DNR-CC (Do Not Resuscitate Comfort Care Order).  This allows the physicians and nurses to provide additional measures to provide comfort care before the heart or breathing stops.  This is also sometimes referred to as palliative care and steps needed to add to the patient’s comfort are performed.  A DNR-CC Order allows ongoing treatment for these purposes.

            It is useful to note that not everyone wants CPR, though it does save lives.  It is frequently not successful, or it may allow a degeneration in life quality for those who receive it by leaving them with painful side effects and/or brain damage.

            Emergency squads and similar health care professionals are required to provide CPR, unless the patient expressly refuses.  This assumes the patient is able to refuse.   A discussion with your physician can resolve your concerns about whether you do or do not want CPR, and if you choose to not have it, then the physician should select a standard Ohio DNR identification form, which is required to be honored by paramedics and other health care workers. The Ohio Department of Health has the form at www.odh.ohio.gov.

            Also, you can designate a DNR Order through your Living Will, or in your Health Care Directive.  Where you are receiving active care, the DNR Order should be part of the medical chart.  If a doctor writes the DNR order, then no one can override the order. If you change your mind, the DNR order can be revoked, but you should cancel the order made on the Living Will or in discussions with your health care attorneys in fact under the Health Care Directives, and the best policy is to re-execute any written instructions so as to eliminate the order.

            A Living Will only takes effect, however, if you are in a terminal condition or a permanently unconscious state, and since emergency personnel will not make this determination for all intents and purposes they will not effect the DNR in a Living Will.  If you wish to avoid CPR, your doctor’s completion of a standard Ohio DNR identification form is the most reliable way to prepare for the unexpected if you wish not to have CPR.

            The information contained in this entry is general and should not be applied to specific legal problems without first consulting an attorney.

© Copyrighted by Bale and Associates, Ltd. 592 Office Parkway, Suite B, Westerville, Ohio 43082.  Phone (614) 895-5600.  All Rights Reserved. January 12, 2015.

LLC – Ltd – Ltd. – LTD – L.L.C. – Limited Limited Liability Companies in Ohio

A popular form of doing business in various parts of the world is a Limited Liability Company (“LLC”).  These companies are formed in Ohio by filing “Articles of Organization” for a Limited Liability Company” with the Ohio Secretary of State.  The State of Ohio charges a small fee to file the company, and it provides the form for creation of the company. The form to file is provided by the Ohio Secretary of State is the only form permitted to be filed to create the company.  It can be found online at http://www.sos.state.oh.us/SOS/Businesses.aspx .

The form for creating the organization looks simple, and it is.  However, filing is only a start, and while it can be and is often done without counsel, there are preparatory steps that should precede the filing, and steps that should coincide and follow up filing. Often these steps should be addressed by counsel and an accountant to address business plans to enhance the chance of the business’s success.

What is an LLC, and how limited is its Limited Liability?

As described by the Ohio Secretary of State online, a limited liability company is “a form of business organization characterized by limited liability, management by members or managers, and limitations on the transferability of ownership interest.  A limited liability company may be formed as a nonprofit or for-profit business type.”

This is accurate as far as it goes, but does not provide much hard information.  There are many forms of business that provide ‘limited liability’.  For example, corporations, limited liability partnerships, limited partnerships, certain business trusts, etc., provide limited liability.  The primary distinction between these forms of business is the manner of control over the business, investment risks and tax treatment.  The advantage of the limited liability company form for small businesses is that the form allows for a great deal of flexibility in these areas of control, investment and tax treatment.  This flexible form of doing business can be adapted to various terms for operations over time to accommodate changes in the business.   Also, operating agreements can be struck among the investors as to how new shares or interests in the company are issued, and all of this can be done without a great deal of formality.  These agreements are entitled ‘Operating Agreements’.  

An important first step to filing for a certain type of business entity is to know what kind of entity should be filed.  This requires a clear understanding of the investors, business management, risks and goals of the business and capitalization requirements.

An Ohio LLC is often used as a business form for small companies that want to do business without a lot of special operating requirements, such as meetings, minutes, elections, etc., and that do not have special capitalization requirements.   It is very flexible, as a business form, but there are a variety of ways to add complexity to this form to perform the goals for the business.  Often people that use this form find that they can adapt to new challenges in business organization as it evolves.

However, as far as limited liability goes, the smaller an organization is, the less likely that the work of the organization will be conducted by hired help who are not owners. Consequently, where the owners are directly involved in the work of the company, the owner may have tort liability to outsiders for mistakes in completing the work.   An example of this is poor building construction that results in an injury to a person.  

Where work is performed by an owner, he or she may have personal liability that is unlimited for that work even though the work was performed under contract with their LLC.  Consequently, limited liability under this scenario can be a misnomer and a false sense of security may arise without understanding the legal relationships and risk exposure to the owner(s) performing the LLC’s work.

The information contained in this entry is general and should not be applied to specific legal problems without first consulting an attorney. 

© Copyrighted by Bale and Associates, Ltd. 592 Office Parkway, Suite B, Westerville, Ohio 43082.  Phone (614) 895-5600.  All Rights Reserved. January 12, 2015.