1

Introduction

I do not know at what point the perception of Estate Planning became the legal equivalent of an oil change; but the result is not good. Attorneys with only a minimalist understanding of Elder and Estate Planning Law, are churning out carbon copies of ICLE (the Institute of Continuing Legal Education) templates with a "cut, copy and paste" mentality, leaving their clients woefully under protected. To be fair, I do not consider myself an expert. In fact, after two years of practice almost exclusively in the arenas of Elder Law and Estate Planning, I am certain there is as much I don't know, as there is that I do. However, I know enough to see a trend developing very rapidly, a trend I am certain will denigrate the public's confidence in the legal profession. As a matter of example, in the past six (6) months I have encountered over a dozen estate plans that did not even begin to address painfully obvious Medicaid, Estate Recovery and Tax mitigation matters. This is a disservice to the public and it must stop. This guide is intended to serve as a compass, assisting its user in finding a responsible and competent Estate Planning Attorney, who may provide them with the appropriate guidance and necessary documentation, so as to avoid falling victim to this epidemic of lack-luster legal service.

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Non-Attorney Professionals

INSURANCE AGENTS / FINANCIAL ADVISORS / ACCOUNTANTS. Under no circumstances should you trust the legal advice of any person, regardless of their non-legal credentials, that is not a licensed attorney. Even if the Insurance Agent, Financial Advisor or Accountant with whom you are working is also a licensed attorney, it is always wise to have these services provided by independent professionals, so as to prevent abuse or self-dealing. This is not to say however, that such professionals should not cooperate or work with your attorney in the preparation of your retirement or estate plan. Quite the contrary, often the result of collaborative efforts by independent parties across various professional arenas creates a better overall product and service for you, the client. The key to maximizing the benefit of employing multiple service providers is that each such provider must independently maintain a professional obligation to act solely in the best interests of the client; if this is ever in doubt, you should consider seeking an alternative option.

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Do-It-Yourself

ONLINE and DIY (DO-IT-YOURSELF) RESOURCES. The internet has brought us many great things; online and DIY legal services are not among them. The problem with DIY legal resources is that there remains no book, web-site or software capable of analyzing the totality of a client's given circumstances. Much as websites such as "WebMD" provide users with an idea of their medical ailment, self-medication remains near the apex of foolishness; DIY legal guides may point users in the right direction, but the drafting of legal documents by a non-attorney is a prescription for disaster. What is strange however is that the shortcomings of DIY legal resources is generally not in the output; rather the failures come in the form of user error with respect to the input. The textual infrastructure of DIY legal work is often sound and generally up to date with current law; it is the non-obvious hazards that require an Attorney's attention. One such example might be a client with a disabled child. The client may wish that a disabled child receive a greater share of the clients assets at his or her death, than do the client's non-disabled child(ren). With the best of intentions, a DIY expedition into the world of legal drafting may possibly, if not likely, inadvertently disqualify the disabled child from some or all government assistance the disabled child may be receiving as a result of their disability. Another example is the tax consequence of an estate planning document that dictates a numerical monetary distribution of the decedent's assets - particularly as the baby boomer generation, flush with tax deferred retirement accounts, begin to pass away. While a DIY document may provide the option to stretch distributions over any number of years, the inadvertent result may nonetheless drive up a beneficiaries year-of-receipt tax obligations. These are only two of literally dozens of latent hazards a DIY legal document exposes even the most well intentioned individual to. As my mechanic tells me every time the check engine light comes on, "you can spend a little now, or a lot later."

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General Practioners

THE GENERAL PRACTIONER. Before addressing the risks of employing a General Practioner for the provision of your estate planning documents, please be aware that there are many General Practioners who are very well versed in these areas of the law and who are more than capable of providing excellent legal services. That having been said, you should be careful in trusting your estate plan to the same attorney who handled your divorce, criminal defense, bankruptcy or personal injury lawsuit. As stated in the introduction of this document, estate planning is not so simple as to require only a superficial understanding of the law - it is not the legal equivalent of a mechanic changing the oil in your vehicle. Estate planning is very complex in its own right and has numerous quirks and intricacies that an attorney who spreads their practice over multiple areas of the law may be ill-equipped to handle. Do not be afraid to interview your attorney, to ask them about their continuing legal education in the arena of estate planning, to ask them about the regularity in which they provide estate planning services and, of course, review their profile on Avvo.com.

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Conclusion

As stated, this is only a Guide and is in no way intended to be an "end all be all" for locating your Elder Law or Retirement and Estate Planning counsel. Use common sense, don't be afraid to ask questions and most importantly realize the impact and importance of having a thorough estate plan prepared will have on those you leave behind. Remember that your attorney works for you, you are paying him or her for their time and that they owe all obligations to you, the client, not the other way around. Take care and God bless.