Introduction to the FAQ
This is not going to be your usual FAQ (Frequently Asked Questions) List. All too often, I read these things on other people’s sites and I wonder who exactly has asked these questions, and if they are actually answered all that frequently. So instead of an FAQ, I’d like to provide you with a list of things that you need to know that you might not even think to ask.
GENERAL LEGAL QUESTIONS
A friend of mine has a legal problem. Can I ask you some questions?
So, your best friend has a legal problem, and they’re driving you crazy with it. The case is complicated, everything is wrong, the don’t know if their lawyer is doing a good job or they haven’t decided to get a lawyer yet. You want to be a good friend, so you pick up the phone and call a lawyer, thinking you will tell the lawyer all about your friend’s problem and get some advice for your friend.
STOP RIGHT THERE. Really. Don’t make that call.
I can’t talk to you about someone else’s case. It’s not your case? You’re not my client? I can’t give you advice for a third party. It’s unethical for me to do this. Don’t ask me to do this.
I can’t tell you how many people call with these questions, and there’s just nothing I can do for them. I can’t help your friend unless they make this call themselves, and the decision to do that is up to them.
There may be reasons that your friend has not hired a lawyer yet. They may not be ready to. They may have already talked to a lawyer and they’re deciding what they want to do. There could be facts that your friend has not told you, so you don’t even know enough about the situation to ask the question. But you are making a call that is your friend’s call to make, and I can’t help you with that.
Whatever they’re doing, no matter how good a friend you are, you are not helping them by inserting yourself into this case and trying to get third-party advice for them. Spend your time being your friend’s emotional support, and let your friend make her own legal decisions about her case.
FAMILY LAW
Can you represent both of us? We agree on everything.
Many people come to me believing that they and their spouse will agree on everything, and most of them are wrong. They have mistaken beliefs about what the other spouse says they want, or both sides are overly optimistic about how well things are going to go. If you are divorcing this person, you’re doing it for a good reason. Expecting things to work better at the end than they worked during the relationship is usually unrealistic.
Also, legally I cannot represent both parties in a divorce or in a Suit Affecting the Parent-Child Relationship. There are a lot of reasons for this, but mainly it comes down to these cases being adversarial. Both parties have interests in the property and the children that are going to be in opposition to what the other one wants, even in cases that are agreed or very close to agreed.
If I represent one spouse, I am ethically required to tell the spouse I do not represent that I do not and cannot represent both of them. If they do not get a lawyer, I cannot give them legal advice either. I can present them with paperwork and settlement offers, but I cannot cross over into helping them decide what they should do and how they should proceed.
There is such a thing as a Collaborative Law divorce. I do not practice collaborative law. If you want to look into that, you can look on Google for how that works. Keep in mind that collaborative law attorneys have to withdraw from the case altogether and have to stop communicating with both parties if it turns out that the collaborative process breaks down on a case.
ESTATE PLANNING AND PROBATE LAW
Why do I need a will?
You need a will so that when you pass away, your property will go to your family and loved ones in a manner that you would have wanted. If you die without a will, which is called dying “intestate,” your property will pass according to state law.
What property passes under a will?
Really, it’s easier to discuss what property does not pass under a will. The bulk of the money that most people will leave to their families will be in the form of a life insurance policy. Life insurance policies are what we call “non-probate property.” Life insurance passes to the beneficiary you designate on the beneficiary form, and not according to the terms of your will.
Do I really need a lawyer to make a will?
It depends. If you have very little in the way of property and very few people you want to leave it to, you can make a will entirely in your own handwriting called a “holographic will,” and as long as your signature is on it, it’s a good will. You do not even need witnesses if you do it this way.
However, most people have a little more property than they’d be comfortable leaving this way. They also might want some provisions that a lawyer should look at to make sure that the words they’re using mean what they think they do. I once advised a client on a homemade will that had such confusing survivorship language on it that if she and her husband had died in a common tragedy, their families would have received the other spouse’s possessions, which was certainly neither what they had in mind nor what their families would have wanted. She ended up hiring me to make their wills rather than advise on making their own will because she wanted the peace of mind of knowing that their wills did what they wanted them to do.
The problem is that the legal language of wills has not changed a lot in several centuries, and it’s confusing if you’ve never made a will or studied estate law. A lawyer can help with this.
OTHER DOCUMENTS
Statutory Durable Power of Attorney
A statutory durable power of attorney is a document that authorizes someone else to take care of your important business, especially your financial business, in the event that you become incapacitated due to old age, disease, or accident. It can be a stopgap measure to hold off the need for a guardian for an incapacitated person who may need help remembering to pay the bills but who does not need a full guardian just yet.
The person you designate on this document should be someone you would trust with your life, because you would be handing them the ability to sell your house and spend money out of your bank account. It’s a sobering responsibility to give someone. It is far better for you to designate this person yourself, ahead of time, than for your family or a court to have to argue about who takes this responsibility for you.
Medical Power of Attorney
A medical power of attorney designates the person who will make your medical decisions for you if you are unable to make them yourself. If you were in a coma or if you were to be declared mentally incapacitated in your old age, you would need someone to make your medical decisions for you. This needs to be someone with whom you have discussed, in detail, what your opinion is about various treatments that you might need.
Directive to Physicians
The directive to physicians is the document where you can designate for yourself what kind of treatment or non-treatment you want if you are dying or in a vegetative state. The directive to physicians spares your family and the person designated in your MPoA the agonizing decision of whether or not to take you off life support. You yourself designate the level of treatment you want and what kind of heroic measures, if any, you want taken in the event that these decisions need to be made about you. This document offers peace of mind not only to you but to your family.