Monday, May 23, 2016

Ok, that's enough! Stop giving legal advice if you're not a lawyer.

On Friday, I had to yell at someone in a bank. Well, I suppose I didn't have to, but that is pretty much what happened. You tell me whether you'd have done the same.

On Friday I met with a client who is around 90 years old. She has never been married, has no kids, and no siblings. She is close with a couple of cousins that she trusts. She has a very small estate, and wants a will to deal with it, which of course I agreed to prepare for her. She also wanted an Enduring Power of Attorney and Advance Healthcare Directive.

Within two hours of leaving our meeting, the client called me and said she no longer wanted the Enduring Power of Attorney. She had gone to the bank after our meeting and when she mentioned why she had been to see me, the bank person advised her not to get a POA. When I asked why, she said the "girl at the bank" had said someone could steal her money.

She didn't know the person's name, so when I phoned the branch manager in a fury, I wasn't sure exactly who to blame. But I left no doubt in his mind that I was not going to accept his staff giving legal advice to my clients. I wrung a promise out of him that he would find out who had talked to  my client and would reprimand her.

I know I'm a bit of a hurricane on wheels when I get angry, which is extremely rare, but I felt justified. I gave advice to a woman after hearing the details of her life, understanding her goals, and forming an opinion based on my many years of experience. I simply could not believe that someone with zero legal training at all would scare my client out of taking a step that I had strongly advised. I felt that someone had taken advantage of the fears of a vulnerable woman and it really upset me.

This is an ongoing problem. People give advice that they have absolutely no business giving. You will recall that recently I blogged about a person whose financial advisor had drafted his will. It's similar in the sense that people with no legal training whatsoever are giving advice as if they did. Unfortunately, the people hearing the advice don't always seem to know the difference, as the person giving advice has some appearance of being in a position of knowledge.

It absolutely galls me that people are being led astray by interfering individuals talking about things they have only heard second-hand, or possibly third or fourth hand.They either scare people, such as they did with my client, or lull them into a completely false sense of security, like the fellow whose will was drafted by an untrained person.

I wonder how many families are going to be destroyed by the incompetent wills drafted by that unscrupulous financial advisor who will clearly do or say pretty much anything to impress his clients? I wonder how much money will be wasted when applications have to be made to the court for trusteeship of adults because their bank tellers advised them not to use POAs? There should be consequences for this kind of dangerous behaviour.

I can't stop every person who pretends they have legal knowledge they don't, but I can make sure that this particular banker stops giving out fake legal advice.

Still don't have a healthcare directive?

I've come across a really good article by Aviva B. Abraham of the Toronto litigation firm, Wagner Sidlofsky. It covers in some detail what you need to include in a healthcare directive, and why you should have one. Click here to read it.

In my practice, I find a significant number of individuals come to see me to get wills made, but they haven't really decided whether or not to have a healthcare directive as well. Sometimes they don't know much about them. In other cases, they've heard of them but just don't want to think about the subject matter, such as being helpless in a hospital. Once I discuss with them what the document is all about - and what can happen if they don't have one - they usually want to have one made for them.

Check out this article for information about how a healthcare directive (which in this article is called a Power of Attorney for Healthcare) could work for you.

Deceased would rather die than vote for Trump or Clinton

NOLAND, MARY ANNERegular readers of this blog know that I am always on the lookout for unusual, odd, or remarkable estate-related items. Recently I found this unusual obituary that I'm sharing with you. What's so unusual about it? Just the fact that it starts off by saying the deceased would rather die than vote for either Trump or Clinton. I feel her pain, and I'm not even American.

Click here to read the obituary of Mary Anne Noland of Richmond, Virginia. The above photo of Mary Anne Noland accompanied her obituary in the Richmond Times-Dispatch.

Monday, May 16, 2016

Edmonton man charged with Theft by Person Holding Power of Attorney

The Senior Protection Unit of the Edmonton Police Service has recently issued a media release about a man named Jeffrey Edward Stals. Mr. Stals has been charged with defrauding his 94-year-old grandmother out of $265,000 while he was appointed under her Power of Attorney. Click here to see more details on this story from the Edmonton Police's website.

In Canada, there is a specific crime called Theft by Person Holding Power of Attorney. Mr. Stals is charged with that, appropriately, as well as with fraud.

This case is unusual, for two reasons.

One is that the criminal activity was discovered by the grandmother herself. The story says that she noticed the missing money when she "regained capacity". I don't know the full facts of her incapacity but apparently it was something temporary as she later bounced back from it. In the vast majority of cases, once a senior requires the help provided under an Enduring Power of Attorney, he or she does not regain capacity to once again deal with finances. As a result, an awful lot of people in Mr. Stals' shoes would get away with this.

The second reason is that the grandmother was willing to contact the police. It has been one of the saddest frustrations of my career to see mothers, fathers, and grandparents reduced to poverty by the greedy actions of their kids or grandchildren, while the victims simply refused to involve police or anyone else. They don't want to cause trouble, and in some cases even fear what would happen if they tried to speak out. They don't want the public embarrassment of people seeing how awful their kids really are. They don't want to be disloyal to the kids. Because of this, a lot of theft and fraud goes unreported.

I am really pleased that this case was reported and that the Edmonton Police have an effective unit to respond to seniors' complaints.

Individuals acting under an Enduring Power of Attorney don't always seem to understand that they are not being given money personally. They are only being asked to manage it for someone else. someone who trusts them with their life savings We know that theft and fraud using Powers of Attorney is rampant, and we know it's because people figure they won't ever get caught. Sometimes they won't, but the case of Jeffrey Stals shows that sometimes they will.

Sunday, May 15, 2016

How refusing to bill clients by the hour is working for me

When I opened my new law office about 9 months ago, I set up a billing system that does not rely on billing my clients by the hour. I bill everyone on a "job" or project basis and I am very transparent about what the job or project will cost. If it's something that is lengthy, such as negotiating a settlement on an estate dispute that is going to take several steps, the clients and I work out what the steps will be, what I'll bill, and when I'll bill. I don't take retainers. I don't bill clients for printing pages or postage.

All of this is extremely unusual for lawyers to do. We are traditionally compensated for our time by the hour (or parts of an hour) and charge back for every postage stamp and piece of copy paper. In some circumstances, we are compensated for our results, such as in a contingency agreement on a car accident where the client pays a percentage of the monetary settlement to the lawyer.

I tried to envision what a law office would be like if it were more client-friendly, and where the billing arrangement was more like other businesses. Now that I've been operating this way for several months, I'd like to offer a few thoughts on how it's going.

1. Clients LOVE it. Our feedback has been 100% positive. We constantly hear how the experience was wonderful, how they loved working with us, it was stress-free, etc. They are effusive in their thanks to me and my staff. Many of our clients hug me. I think I've had more hugs from clients in the last 8 or 9 months than I had in the previous 25 years of practice. Our clients feel at home in our office, and in fact we have had three or four drop in without appointments just to see if we're free to have a cup of tea. One customer who lives nearby drops in to bring treats to our little office dog (Teacup Pomeranian named Roxy. That's her in the photo, in her raincoat).

2. It generates new business. When clients leave your office absolutely pleased in every possible way, what do they do? They tell everyone how great you are. We've already had a great deal of word-of-mouth business from existing clients, which for most lawyers takes a long time to generate.

3, Clients understand it. As we walk out of my office with the work completed (i.e the will signed, the Grant of Probate obtained, the dispute settled), I give the client the invoice. This is just like being billed at the dentist or buying something from a retail store. The bill is not a multi-page list of increments of time spent but a description of the job they just had done. They recognize it, and the fee is exactly what I told them it would be with no surprises. They would actually prefer to get the bill right away rather than wait for something unknown to arrive in the mail. It's cleaner, more transparent, and offers the client more certainty.

4. It's great for cash flow. Since when do lawyers' clients OFFER to pay the bill? Mine do. They pay before they leave even before I ask, so I never have to send out bills then wait 30 days for them to be paid. I have almost no receivables at all because my clients pay right away.

5. Billing this way is part of a culture shift in the law office. It's part of a change away from the attitude that the lawyer is some kind of oracle that may deign to speak to you or may not. The billing system is supported by commitments to the clients to have work done within a certain time, and meeting those commitments. I also send off quick emails to clients as frequently as I can to let them know about developments, even small ones, on their files so they know I'm working on their matters and to cut down on unnecessary phone calls. It's much more about client service than the way I was first taught as a student-at-law.

In other words, it works for my clients and it works for me. I'll continue to monitor the system as we go forward, but early indications are that clients appreciate this system and that it is sustainable in the long term. I hope other lawyers will consider making this kind of change to how they work.

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