Talking about legal planning for your family is never something up
there on your list of fun things to do. However, finding yourself
without a plan can be scary so there’s no time like the present to sit
down and just do it.
It doesn’t matter how much money you have, if you
have young children, you need to think about this. In the long run,
there’s no better peace of mind than knowing you have hammered out the
details of how you want your kids to be taken care of, long term as
well as within the first twenty four hours of something happening.
We’ve asked Kimberly Hegwood of Hegwood & Associates, P.C., a
personal family lawyer, mom of two, and a licensed estate planning
attorney in the state of Texas, to look at some
not-so-uncommon-scenarios and tell us how parents can best to prepare
Scenario #1, You Don’t Make it Home
and your husband are in, God-forbid, a car accident driving home from
work together. Both of you is either seriously incapacitated or worse.
Your child is at preschool or home with a babysitter. You do not have
wills in place. What happens to the children in the next 24 hours? What
happens in the month following? What happens long-term?
The problem with traditional estate planning is that there is no
provision for temporary guardians for your children, which results in a
planning gap. Your children may be at home with a sitter or at day care
when something happens. Since they haven’t heard from you, your care
giver may end up having to call the police. Once the police are called,
if the babysitter or daycare provider cannot show documentation that
they have legal authority to care for your children, the police have no
alternative but to call Child Protective Services (CPS). If that
happens your family may have to spend thousands of dollars to gain
custody of your children.
Since you don’t have wills, family members may end
up battling over custody rights, and a judge who does not know you or
your children, will determine who will raise your children for you.
What can you do to avoid this scenario?
Not only do you need to have a will or a trust, a medical power of
attorney, statutory durable power of attorney and directive to
physicians, but you need temporary guardianship papers for your
In order to make sure your ducks are in a row, you
should find an attorney that suits your needs. An estate planning
attorney usually knows how to protect your family from this happening.
A Personal Family Lawyer (PFL) is just such a lawyer. A good PFL can
help plan for the gap that others may miss. It’s important to put in
writing not only whom you want to raise to raise your children, but
those that you don’t want to be considered as well. This way a judge
will know that you have considered all possibilities. Make sure you
talk to the people you’d like to have raise your children as well and
clearly state your preferences for them in writing.
The following article, written by Paul Pinkham for Jacksonville.com, details the progress made in Florida incorporating collaborative divorce into and as a viable alternative to the litigation process.
Collaborative divorces can save couples money and emotional distress.
Attorney Nickolas Alexander remembers returning to his Orange Park
office seven years ago excited about a new, less confrontational way to
resolve divorces he'd learned about at a family law seminar.
of the acrimonious game-playing that characterizes traditional divorce,
he said he was drawn to the "collaborative process," bringing legal,
financial and mental health professionals together with divorcing
couples in a roundtable setting designed to encourage cooperation over
He immediately hosted a training session at his office. Three people showed up.
Attendance wasn't much better at subsequent attempts two years later.
"The collaborative process has just been kind of limping along since that time without enough support," Alexander said.
the tide may be turning. For the second straight year, the Florida Bar
is drafting legislation designed to codify collaborative divorces in
state law. A similar bill died in a House committee last year.
judicial circuits in Florida – none in North Florida – already have
administrative orders in place, establishing frameworks for
This month about two dozen people showed
up for a collaborative law seminar sponsored by the Jacksonville Bar
Association. More than half were mental health professionals, whom
Alexander and other participants believe are key to giving the idea
"I said to myself, 'There's got to be a better way for
people to get divorced because they get set up to fight forever, and
the kids are the ones who suffer,' " said Ross McDonough, a licensed
clinical social worker in Neptune Beach. "People who go through divorce
are at the worst emotional place in their lives. They can benefit by
having somebody … help separate emotions from judgment."
'A growing phenomenon'
divorce is a voluntary process that begins with a contract signed by
the couple and their lawyers stating they won't go to court and instead
will try to dissolve their marriage together.
mental health professionals become part of the team to advise the
couple, taking into account the family's unique financial and emotional
situation. Marriages marred by violence, abuse, mental illness or
coercion generally aren't candidates for the collaborative approach,
If the process doesn't work and the couple
decides to go before a judge, the contract specifies neither side can
use anything in court that they learned during negotiations, and the
lawyers and other professionals are required to step down.
really changes the tone of negotiations," said Talia Katz, executive
director of the International Academy of Collaborative Professionals in
Phoenix. "Clients make their own decisions about their own lives. No
judge, no attorneys, no outside force can understand the dynamics and
needs of a family better than that family."
She said the process
can be less financially and emotionally devastating for couples because
of its emphasis on cooperation. And it can lower family court case
Though the concept has been around nearly 30 years, it is
still in its infancy in the United States, said Andrew Schepard, who
teaches family and collaborative law at Hofstra University School of
Law in New York.
"It is clearly a growing phenomenon," Schepard
said. "It's a very attractive idea because it returns the lawyer to the
role of counselor."
Schepard said studies by Canada's Justice
Department found high satisfaction with the process in that country,
but no mechanism exists to keep track of collaborative settlements in
the United States. He is working with the Uniform Law Commission to
develop a national standardized policy.
Efforts by The Florida
Bar Family Law Section to pass a state law have been under way about
two years. Last year the House Civil Justice and the Courts Policy
Committee shelved the proposal for future consideration, said Longwood
attorney Matthew Capstraw, a leader of the Bar effort.
"There was a lot of interest, but there were some different ideas and concerns with the bill," he said.
Listening instead of leading
Circuit Judge McCarthy Crenshaw of Clay County said he's long supported the collaborative concept.
that can help people in divorce cases be a little less antagonistic to
each other and be a little more sensitive to the children involved I'm
all for," Crenshaw said.
But he said the provision that
disqualifies the lawyers if the process doesn't work is the biggest
hindrance to acceptance in the legal community. He said he doesn't know
of any other situation where lawyers have to get off a case they can't
Jacksonville divorce attorney Barry Zisser said he fears
that provision could actually make the process more expensive because
couples would then have to find new lawyers. He said about
three-fourths of divorces in Northeast Florida work out in mediation,
which is required before a trial.
But Atlantic Beach attorney
Nicole Habl said the disqualification requirement provides incentive
for everyone to come to an agreement.
"It's an amazing process because the attorneys have to listen rather than lead," she said.
and Michelle Ash, a certified divorce financial analyst in
Jacksonville, said collaboration generally costs far less than
litigation. In the long term, it enables families to structure
financial settlements that can benefit both sides with less rigidity
than traditional divorce proceedings allow.
Ash said her role in
the process is to meet with both sides together and separately to help
them understand what their new household will look like financially.
not so much about the asset division. It's about the cash flow, meaning
is each of these households going to have enough money to live a
certain lifestyle," she said.
Before hiring a wills & trusts lawyer to guide you, your family or
your business, ask these questions to ensure that you don’t end up
paying a whole lot of money for services that are not what you need,
expect or want. Hiring an attorney does not have to be a fearful
experience. Instead, it can be the most empowered decision you ever
make for yourself.
1. What will happen during an initial meeting with your office and how much will it cost?
When you begin to consider getting your legal and financial
affairs in order, the first thing to do is call the offices of lawyers
who you will meet with to handle your planning.
This is a great opportunity for a first level screening to find
the right lawyer for you, your family and your business. Pay attention
to how the phones are answered by the office team. You want to find a
lawyer who has a live person answering the phones who can answer quick
questions for you when you are a client.
When you do talk with someone on the phone, be sure to ask what
will happen at the initial meeting and whether there will be a charge
for the meeting.
Look for an educational initial meeting. Ideally, the purpose of
the first meeting with your lawyer is not just to get to know him or
her, but to provide you with specific guidance and information that
will benefit you, your family and your business.
You want to leave this meeting with a clear action plan for what
your next steps are to ensure your financial and legal affairs and
business are set up the best possible way for your family.
Now, it may be that you have to pay for this guidance so don’t be
afraid to do that because it can be a hugely valuable education. The
key is, you want to know what the cost is going to be upfront so there
are no surprises.
Don’t expect to get valuable information that will help your
family during a free initial consultation. When a lawyer routinely
gives away their time for a free initial consultation it’s not to give
you an education, it’s so you can meet the lawyer and decide whether
you want to work with him or her. Don’t expect free legal guidance.
2. Are all of your fees flat fees? What is included in the flat fee? What is NOT included in the flat fee?
You want to be sure that you avoid a nasty surprise down the road.
Some attorneys will indicate that they use flat fees, but then may tack
on additional charges such a photocopying, telephone, courier, postage,
recording fees and other expenses. While it may be reasonable in some
instances to add on such fees, you want to make sure that you set the
proper expectations up front so you don’t end up with a surprise bill
in the mail.
3. Does my planning fee include a regular review of my legal documents?
What if I want to make changes later? What about on-going work after
completion of my initial plan?
Far too often today, families put in place legal documents and
think “great, that’s done”, now I don’t have to think about that
anymore. Then, the end of their life comes or a crisis pops up and
their family finds out that the documents are out of date and the
assets aren’t owned properly anyway. Then, the plan fails. Or, business
owners set up an entity to shield their personal assets from their
business, but then fail to operate the business properly and keep their
entity in compliance. Then, the business plan fails.
I blame these failures on lawyers who don’t set the right expectations for their clients.
The truth of the matter is, with estate planning, you can’t set it
and forget it. Your wills and trusts and your business documents are
living documents that need to be reviewed and updated throughout your
personal or business life. And you want to find a lawyer who will keep
everything up to date for you, review your documents regularly, and
offer a program to provide you with continuing guidance on an ongoing
basis without hourly fees.
Look for a lawyer who has a membership program or ongoing service
program so you can reach out to your lawyer on an ongoing basis for
legal, financial and business consultation without worrying about being
nickled and dimed. Oh, and be sure your lawyer isn’t going to charge
you for photocopies and faxes!
4. Do you make sure my assets are titled in the right way and my business stays in compliance?
You can have the best business structure and the best legal plan
set up for your family, but if your assets are not titled and
structured properly and if your business does not stay in compliance,
it’s all a false sense of security because when push comes to shove and
a crisis happens, those legal documents won’t work.
Make absolutely sure that the lawyer you are working with is not
only going to put legal documents in place for you, but is also going
to finish the job by ensuring your assets are structured properly and
your business stays in full compliance.
5. Can you help me make smart choices about things like buying insurance, saving for college, and retirement planning?
Your personal lawyer can and should help you make decisions not
only about things like legal documents, but also about things like
buying insurance, saving for college, planning for retirement and all
the other challenging decisions that will come up along the way of your
life and your business. Your business lawyer should be keeping you
informed about things like hiring and firing, trademarking and
copyrighting, and growing your business.
This doesn’t mean your lawyer needs to be licensed to sell
insurance or financial products or practice employment law or
intellectual property, just that they have a big enough breadth of
experience and knowledge and access to the appropriate resources that
they can be a trusted advisor to you on these issues helping you avoid
6. Do you have a process for helping me capture and pass on my
intangible wealth, such as my intellectual, spiritual and human assets
or who I am and what’s important to me or do you primarily focus on
There’s a movement happening in the world in which we are finally
beginning to realize that our wealth is far greater than the sum total
of the dollars in our bank, brokerage and retirement accounts. In fact,
many of us are becoming aware that our intangible assets are much more
When you are working with a personal lawyer, be sure to find a
lawyer who will help you to capture, document and pass on not just your
financial assets, but ALL of your assets, including the most often
overlooked intangible assets, like who you are and what’s important to
Your lawyer should have in place an actual process so that when
your planning is complete, you have created either written or recorded
messages to your loved ones that pass on your values, stories, insights
7. How are you able to be responsive to my needs on an ongoing basis?
One of the biggest complaints people have about working with a
lawyer is that lawyers are notorious for not being responsive. In fact,
I’ve heard of situations in which clients have gone weeks without
getting a call back from their lawyer.
This generally happens when a lawyer does not have enough
administrative support in his or her office. Far too many lawyers
believe they can take care of everything in and around their office
themselves, from paperwork to client meetings to calendaring to
returning phone calls to connecting with their clients other advisors,
the list goes on and on. Truth is, a lawyer who is a true solo
practitioner without administrative support or in a firm without
adequate support will become overwhelmed and non-responsive to your
You can and should ask your lawyer how he or she will respond to
your ongoing needs, how quickly calls are returned in the office, if
there is someone on hand to answer quick questions and if you should
expect to get right through to your lawyer when you call the office.
A great way to test this is to call your prospective lawyer’s
office and ask for him or her. If you get put right through or even
worse sent to a voicemail, think twice about hiring this lawyer because
it means they do not have effective systems in place for managing and
responding to calls or answering your quick questions. Instead, what
you want is for the person answering the phone or another team member
to offer to help you and if he or she cannot then to schedule a call
for you to talk with your lawyer at a future date and time when he or
she will be ready to focus on your matter.
Your lawyer cannot be effective and efficient if he or she is
taking every call that comes through to him or her – all calls should
be pre-scheduled when you are both ready and your lawyer can focus on
your specific needs.
8. How will you proactively communicate with me on an ongoing basis?
Unfortunately, most lawyers do a horrible job of proactively
communicating with their clients on an ongoing basis. The general
thinking in the legal industry is that legal work is transactional in
nature and clients will call when something changes. But, this is
faulty thinking and in my opinion just pure laziness on the part of
You want to look for a lawyer who will proactively communicate
with you at least quarterly by mail via an informative, easy to read
newsletter and monthly by email. I prefer to hear from the
professionals I work with monthly by mail and weekly by email, but
progress can only happen so fast.
If you are considering hiring a lawyer who does not proactively
communicate with his or her clients, think again. This lawyer might be
stuck in an old, outdated mindset that won’t serve your needs in the
best possible way.
Don’t be afraid to ask these questions for you hire a lawyer to work
with your family on your personal and business legal planning. You need
to be satisfied by the answers you receive to these questions, as they
often sneak up on families after-the-fact, and can be a major drain on
your family’s cashflow.