After fourteen years of helping seniors and their family members navigate the legal aspects of aging, physical decline and mental capacity issues and watching family members fight in seven different counties in this state, I would like to share some observations which may help you and your family avoid costly litigation and the hurt feelings that go along with it.
First, have a meeting with an actual elder law attorney. I’m not saying this from a selfish perspective. It’s far more lucrative for those of us who truly practice in this area of the law to clean up the mistakes made by our uninformed, albeit well-meaning, fellow non-elder law attorneys than it is to do things properly from the beginning. However, that course is not usually best for the clients or their family members. Even though your good family friend who played golf with your father or husband every Sunday for 45 years is a fantastic real estate, divorce, business or personal injury lawyer—please do Not ask his advice on wills, trusts, powers of attorney, long term care planning, government benefits, types of facilities, etc.
He will do his absolute best to help, but since this isn’t really what he does, we will end up in court spending tens of thousands of dollars in legal fees when the whole plan blows up. Just as you would not seek medical treatment for your brain tumor from your good family friend, the podiatrist, you should not seek legal advice concerning the myriad of complex legal issues surrounding aging from your good family friend, the real estate attorney. Please take the time to secure the advice of an experienced elder law attorney before the situation starts imploding, and even though aging will continue and health will decline, your family may never experience the panic, stress and emotional trauma of being unprepared and unaware of what to do and how to do it.
Secondly, if you or your family members must litigate these issues, select an attorney who has actually litigated these issues before. It sounds simple, but I’ve lost count of how many disgruntled adult children have called my office wanting to re-litigate a lost case because of “ineffective assistance of counsel” which is code for “my attorney didn’t know what he/she was doing and because of my attorney’s lack of knowledge and experience, we lost our case.” There is no Constitutionally-protected right to effective legal counsel in a civil case, and you cannot re-litigate a case simply because you lost. Even if you prove in a different court that your attorney committed actual malpractice, that in and of itself does not give you another bite at the apple in certain types of probate cases. If people could simply try again in court every time one person didn’t like the result, no case would ever end. When one side wins, the other side usually loses. That’s the way the system is set up.
When you choose an attorney who has never set foot in a courtroom at the probate court to handle your complicated, messy, contested estate or guardianship/conservatorship case, experienced probate litigators on the other side of the aisle like me are likely going to have a very good day. It’s not fair, but it’s life. Understand it and plan accordingly.
Lastly, if you are a senior and you have children or stepchildren, please be honest with yourself and your attorney. You know your children. You know if two or three of them have been at odds for two or three or more decades. Even a low level of constant tension tends to boil over once the stress levels start to rise following the death or incapacity of a parent. It is perfectly acceptable, and sometimes even cost-effective, to appoint neutral professionals to handle certain matters for you or your estate instead of choosing one or two children as opposed to the other(s). Even though professionals charge fees for their time, those costs are usually nominal when compared to legal and court fees for litigated matters that can take several years to resolve.
The phrase “penny wise, but pound foolish” exists for a reason, so please plan ahead, be honest with yourself and your elder law attorney, and then both your estate and your family members will thank you later.