Health care directives, or living wills, made major headlines during the Terri Schiavo case and many people talked about the need for such documents. But as the topic has faded from the headlines, it has also faded from our minds. A health care directive allows you to express your wishes and make decisions on medical issues if you are unable to communicate with your doctors. You can also appoint an agent to make these decisions for you. Even though the subject matter may be difficult, getting a health care directive is really simple. What excuse do you have for putting it off?
Once you have decided you need a lawyer, the next question is how do you find a lawyer? There are many different ways to find a lawyer, each with their own advantages and disadvantages. Here are some of the most common ways to find a lawyer:
- Referrals from Friends and Family – By asking friends and family members for referrals, you are getting a recommendation from trusted people who know you, will know what you are looking for in a lawyer, and what personalities you “click” with. However, don’t let referrals from friends and family be the end all be all in finding your lawyer. Your parents’ nice estate planning attorney may not have the skills necessary for your discrimination lawsuit and your best friend’s business attorney may not be the best choice for your divorce.
- The World Wide Web – The Internet is becoming the way we find information. It takes mere seconds to go to your favorite search engine (Google, Yahoo, MSN) and find attorneys in your area. You’ll find attorneys’ websites as well as local listing information. Just keep in mind that lawyers and technology don’t always go hand in hand. Some excellent lawyers might not have websites, or might not rank high in the search rankings.
- The Good Old Yellow Pages – Before the Internet, people used the phone book to find information. Just open up that great big book and look under “Attorneys.” However, as the Internet gains in popularity, the phone book fades away, and because fewer clients are turning to the phone book to find attorneys, fewer attorneys are spending their advertising money on a Yellow Pages ad.
- Referrals from Organizations – Another place to find a lawyer is through referrals from different organizations. Contact your local chamber of commerce or bar association. Check with different social service organizations. Look at organizations related to the area of law you are dealing with. When using an organization for a referral, ask about the criteria they use. How do attorneys get on the referral list? Does the organization do any type of screening, or do they just keep a list of lawyers?
Remember, the lawyer you choose can greatly impact your case. Take the time to find the right lawyer for you.
While not everyone needs a will, most people could benefit from a will. You could use a will if:
- You would not want your property divided according to your state’s intestacy laws
- You would want to leave something to a person not recognized by your state’s intestacy laws (a non-marital partner, a stepchild, a best friend)
- You or your spouse have children from another relationship
- You have minor children and would like to designate a guardian to care for them
- You have a beneficiary with special needs
- You have specific wishes regarding how your assets are distributed
- You would like to leave something to a charity.
- You would like to establish some sort of trust upon your death
- You have a substantial estate and could benefit from tax planning
If you need a will, Monticello based Minnesota Estate Planning Attorney Jennifer R. Lewis Kannegieter provides a variety of estate planning services for clients throughout the Twin Cities and Central Minnesota. Contact Jennifer today.
Need-based awarded mean that one party cannot afford the fees and that the other party has the means to pay. In many cases this can be a problem as neither party can really afford additional fees. Conduct-based fees are awarded when the court finds a party to be acting in bad faith and unreasonably contributing to the length or expense of the proceeding. As frustrating as the process can be, that does not necessarily mean the court will award conduct-based fees. And even if there is an award, that does not mean the other party will pay it. The expectation for many attorneys (myself included) is that my client will pay my fees. I am not interested in chasing down the other party for payment. If the other side happens to pay for what my client has already paid for, than that money will be passed along to my client, but I don't wait for the other side to decide to pay me.
There is also the practical problem that getting an award for attorney fees means that you have gone through the court process and are now in front of a Judge asking for a decision. If you are going to court on other issues, then it may make sense to ask for attorney fees. But, it does not make any sense to incur additional fees just for the possibility that the court will grant an award. In most cases, parties agree to each pay their own attorney, but the issue of attorney fees can be a discussion of negotiation and sometimes the parties will agree to a contribution for fees, or will offset fees in the property division.
The Summons and Petition must be personally served on the Respondent for the divorce process to officially start. This can happen by someone over the age of 18 (but not the Petitioner) personally handing the documents to the Respondent and then signing an Affidavit of Service in front of a notary. Personal service can also happen with the Respondent signing an Admission of Service in front of a notary. Once the divorce has officially started, the Respondent will have 30 days to prepare a formal Answer and Counterpetition (although in many cases this timeline is extended to allow the parties time to negotiate a settlement).
Now every attorney has a different approach to starting the divorce process. At least ever month I speak to someone who has just been served divorce papers, and the situation is typically this:
Some random third party has shown up at their home or work place to hand them a blank envelope containing only the Summons and Petition. They read the documents, not really knowing what they are or what they are supposed to do. They get to the Prayer for Relief at the end of the Petition and freak out – the Petitioner is asking for anything and everything and just seems to be crazy (The Petitioner earns more than the Respondent but is asking for spousal maintenance; The parties have been separated for several months during which time the Petitioner has hardly expressed an interest in the children but is now asking for sole legal, sole physical custody and child support; The Petitioner is asking for all of the property and requesting that the Respondent take all of the debt).
The Respondent is now scared and angry, does not trust the Petitioner or the Petitioner's attorney, and is ready to fight.
This is a very bad way to start a divorce – there is no trust or desire to work towards a resolution. Now maybe there are some cases which require a tougher approach, but in most cases, I find that a softer approach will result in a quicker (and cheaper) resolution with less conflict for the family. I tend to work with my client to ask for reasonable relief in the Prayer for Relief (what my client really wants and what we reasonably believe will be the final result). I always serve papers with a cover letter explaining what the papers are. In many cases, I have worked with my client to prepare a proposed Marital Termination Agreement to be included with the initial papers. If my client and I believe the Respondent is likely to sign an Admission of Service, and there is no reason the divorce needs to be started immediately, I will mail the documents, along with an Admission of Service to the Respondent, and the cover letter will explain that I need the Respondent to complete the Admission of Service and return it to me within a certain time frame, otherwise I will need to have the documents personally served upon Respondent. In most cases, the Respondent will return the Admission of Service.
The Respondent may consult with or hire an attorney, but instead of focusing on how to fight the Petitioner, guessing what the Petitioner may be asking for, and discussing all the possible issues, the Respondent and the attorney can review the proposed agreement and discuss settlement options. Right away we can determine what the parties agree to and what areas we need to work on, tailoring the case for the situation. How you start your divorce can have a big impact on how long your divorce process will be and how much time and money you spend fighting.
One of the most important things in preparing your estate plan is naming the appropriate person to act as your Personal Representative (or Executor). Some people feel there is a “right” person to name, by virtue of relationship, birth order, or proximity – these reasons can lead to disastrous results if the wrong person is selected.
A complete estate plan can require several different appointments – personal representative (executor), attorney-in-fact, trustee, health care agent. These positions are very important and can be complex. A Personal Representative (or Executor) is appointed in a will to handle the closing the estate. Tasks include collecting and inventorying property of the estate, maintaining an estate checkbook to pay final bills, filing probate forms and handling the probate process, preparing final tax returns, and distributing the property in accordance to the will. An attorney-in-fact is an agent named in a Power of Attorney (POA), this person can act on your behalf as provided in the POA, handling financial or other matters while you are still alive. A trustee is the person in charge of handling the financial matters of a trust – paying valid bills, making distributions, investing where appropriate, completing required forms. A health care agent is the person named in a Health Care Directive (also known as a medical power of attorney or living will). The health care agent has the power to make all medical decisions for you should you not be able to speak for yourself. These positions are more than honorary titles, they require hard-work and the ability to handle the tasks involved.
For your estate plan to work smoothly, you must appoint people who are right for the job. Look for someone with the following characteristics:
- Willing to accept the position -do not surprise someone with the appointment, he/she does not have to accept the job, so your estate will run smoother if you select a person willing to take on the task.
- Responsible & Trustworthy – the person you name should be someone you would trust your life and your money to (because that’s what you are doing). To prevent family harmony, and avoid future disputes, this person should also be trusted by other family members.
- Organized – A Personal Representative or Trustee is in charge of a lot of paperwork and financial tracking. The job will be much easier if he/she is a naturally organized person who keeps meticulous records for his/her own finances.
- Focused – some of these positions could last for years. Some tasks will require hardwork and a lot of follow up. Make sure you name someone who will remain focused and get the job done.
- Capable of handling the task – Some people just would not be up for the job, sometimes the emotions of the situation may prevent a person from getting the job done. If your daughter is an emotional person anyways, she just may not feel up to the task of handling her parents’ estate.
- Able to make a decision – To some people, making a decision is difficult, if not impossible. These people may be paralyzed by the burden of making certain decisions. Do not name your son as your Health Care Agent if he will be unable to make the decisions you would want (such as when to remove life support) when that time comes.
- Willing to seek and accept help – sometimes the position of Personal Representative or Trustee can be overwhelming. You do not want to burden your loved ones. Your nominated person should be willing to seek professional help from a lawyer or financial adviser, or accept offers of help from family, should the task get complicated.