"Avoid Using a Lawyer if You Possibly Can"
4/04
I read these words with amusement when I recently met with Nancy C. and her daughter Carol in connection with an Elder Law consultation. The document I was reading was the instruction page of a Living Trust Nancy C. brought in for my review. The Living Trust was signed by Nancy C. and her late husband about fifteen years ago.
The document was convoluted and incomprehensible in many respects. I knew immediately it was not drafted by an attorney. When I asked who prepared the documents, Nancy C. told me that they were prepared by a neighbor in her condominium complex who also prepared the same trust for several other neighbors.
Nancy C.’s trust was clearly from a one size fits all do-it-yourself form book. The Trust and other estate plan documents were sufficient in some respects but severely lacking in other respects. In addition to instructing the trustees to “avoid using a lawyer if you possibly can,” the instructions had a lot of helpful information on administering the Trust. Unfortunately, the Trust itself did not conform to the instructions on administering it. The Trust was deficient in many key respects: (a) the marital trust within the Trust documents did not have any dispositive provisions; (b) there was no mention of revocability; (c) there was no provision to amend the trust; (d) there were insufficient provisions for removing a trustee; (e) there were not listed powers of the trustees; (f) there were no spendthrift or asset protection provisions; (g) there were four named trustees (a certain potential for conflict); and (h) there were no page numbers on the pages of the Trust and no indication of how many pages comprised the Trust. In addition, the Will and Springing Power of Attorney accompanying the Trust were inconsistent with the Trust and the Health Care Proxy named two proxies (again creating a potential for conflict).
These were just some of the problems in Nancy C.’s do-it-yourself Estate Plan. Nancy C.’s well-meaning neighbor did a great disservice to Nancy C. and presumably the other neighbors he tried to “help.” Even the most sophisticated insurance and financial planners do not undertake the work of drafting legal documents. First, they are not authorized to practice law; and second, most recognize that they have a separate specialized role in the Estate Planning process. In most cases, poorly drafted Estate Planning documents are worse than having no Estate Plan documents at all. Without an Estate Plan in place, your assets will pass by the pre-determined laws of the State of New York. With a poorly drafted Estate Plan, you may not know for certain how your assets will pass to your heirs.
“Avoid using a lawyer if you possibly can;” however, do so at your own peril. The drafting of complex Estate Planning documents when you have no idea what you are doing is simply not a smart thing to do. We will help Nancy C. rectify her mistake but there are many other “do-it-yourself attorneys” out there who will not be as fortunate and who will pass along major headaches to their heirs.