The Solo Attorney’s Plan for Succession, Disability and Death: part 1 of a series.
Overcoming inertia can be difficult! [In case you're wondering, the picture at left is of Newton's laws, I'm thinking particularly about Newton's First Law about overcoming inertia.] Let’s face it, procrastinating has a bad rap – but it isn’t always a bad thing. But if you are a solo attorney and you don’t have any arrangements in place for someone to be able to assist in the event of your sudden incapacity or disability or death, you might want to consider thinking about what might happen to your spouse or loved ones if something happens to you.
On February 11, 2013, I presented a continuing legal education (CLE) program on the topic “Death of a Solo, Death of A Practice: Planning for the Inevitable. “ I’m pleased to say it was well-attended and I got many positive responses from colleagues. Apparently this topic is on a fair number of my colleague’s minds. There are several layers of challenges for a solo in figuring out a plan. In this series of blog posts, I will talk about some of those challenges and some ideas about how to work through them.
I think the biggest obstacle for many people is the very first one, and I used a slide entitled “What Me Plan?” to pay homage to Alfred E. Neuman (of Mad Magazine fame, in case you’re too young or that part of your memory is compromised) and keep this whole question on the lighter side. The idea for the program was of course not original. Back in 2010, I worked on and presented at a daylong CLE program (August 2012, “Planning Ahead”) for this same topic for solo and small firm types. Last summer at the Elder Law Retreat in Vail, I presented a couple of the forms I used as materials for the Feb. 11 program as a “special bonus” to my ethics presentation. What prompted me to propose this topic to the lunchtime CLE series was an article I read in the January ABA Journal about the terminal illness and death of a sole practitioner and the impact it had on a friend’s life and law practice. The story is essentially about community, but is also a cautionary tale about being realistic about our own mortality and making a plan for uncertain certainties (when we will die) and certain uncertainties (whether we will be incapacitated or unable to practice law for a short or long term period). The vast majority of colleagues I speak to (including those practicing trusts & estates and elder law) do not have any documentation in place. Most of us have a vague sense that having a plan would be a good idea . . . . but how to get started and how to go about it?
I think this procrastination proves that lawyers are people first and lawyers second – most people don’t have wills and durable powers of attorney because they procrastinate and for a few other reasons, but that’s another topic. I am concerned in this post with getting over the initial hump, that inertia of the status quo of not having anything in place. Death denial plays out in many powerfully subtle ways, and procrastinating facilitates its continuation. These posts will be about getting past the first obstacle and allowing ourselves the space to consider our own vulnerability and mortality and doing this in the context of what we value in our lives, what is important to us and who we want to protect. Considering what is at stake is one way of looking at it, but for every individual there is a different perspective. The tricky thing about this kind of planning is – we never really know whether it is necessary . . . until it is too late!
This gets back to the whole idea behind estate planning as a positive and meaning-making human endeavor. I’ve addressed some of the therapeutic aspects of estate planning in a previous post here, but I think some of the points about fear of death are worth repeating – these are some elements of people’s fear of death that psychologists have described:
- They can no longer have any life experiences;
- They may be uncertain as to what will happen to them if there is a life after death;
- They may be afraid of what will happen to their bodies after death;
- They realize they will no longer be able to care for their dependents;
- They realize that their death will cause grief to their relatives and friends;
- They realize that all their plans and projects will come to an end; and
- They may be afraid that the process of dying will be painful.
When we think about our own mortality we can see beyond the basic fear of the unknown and think about how our death is connected to our life. I think this is where a fear of death is really more about a fear of life, of life’s inherent uncertainty and fragility. What if we could start practicing a little bit every day, by recognizing the uncertainty of the future – any knowable future, by looking at what is and being grateful for it? Now I’m thinking about another blog post or two where I’ve cited Dr. Ira Byock’s four things to say to others while we are alive, but particularly useful when we know our time is limited:
please forgive me
I forgive you
I love you
If we could start saying these things while we are alive, maybe it would be easier to consider our own mortality and examine and embrace the meaning of our lives. This is where the community element comes in. The other part of my message for the recent CLE was that solos are not alone, we are part of a community. We can help each other talk about what our concerns are about planning, addressing our own individual needs and concerns, along with finding a colleague we can trust who can assist us in the execution of plans in the event of our disability or death. As members of the CBA solo and small firm community, we can share our ideas, experience and strength in ways that help us as individuals (and our families and loved one) and foster our community. In future posts I will be sharing some more ideas about getting started and making progress toward a plan, as well as some of the documents that solo attorneys can use for their document “infrastructure.”
©Barbara Cashman www.DenverElderLaw.org