I've seen good POAs written which include the right to institute an action for divorce among their terms.
Why would an incapacitated person want to divorce their spouse?
If one spouse is headed for an assisted living facility or a nursing home, and the other spouse (helped by a POA, or armed with a POA) decides that with legal help she will divorce her spouse, she might be able to avoid having her assets count for purposes of qualifying her spouse for Medicaid. This way, their hard-earned retirement doesn't necessarily have to pay for nursing home care.
This is the point where I tell you that this is complicated and you shouldn't try this at home. However, it makes sense to put it in a POA because it's not immediately obvious otherwise.
Wednesday, September 30, 2009
Tuesday, September 29, 2009
General versus Specific POAs
You may hear people refer to POAs as "general" or "specific."
General POAs allow people to do basically anything. Good POAs will still cover a wide range of activities, but theoretically by their nature (being general), the power of attorney should be able to do anything.
Specific POAs are not usually used in an estate planning context. They allow a person to do a certain range of things. I see these most often in divorce proceedings, when a court will grant one spouse a "limited power of attorney" to do something which requires signing the other (non-cooperating) spouse's name.
We can keep this short: you want a general POA. Banks will give you enough of a hard time if you don't put the kitchen sink in your POA. There's no sense in limiting it further by making it specific or limited.
General POAs allow people to do basically anything. Good POAs will still cover a wide range of activities, but theoretically by their nature (being general), the power of attorney should be able to do anything.
Specific POAs are not usually used in an estate planning context. They allow a person to do a certain range of things. I see these most often in divorce proceedings, when a court will grant one spouse a "limited power of attorney" to do something which requires signing the other (non-cooperating) spouse's name.
We can keep this short: you want a general POA. Banks will give you enough of a hard time if you don't put the kitchen sink in your POA. There's no sense in limiting it further by making it specific or limited.
Monday, September 28, 2009
Springing v. Durable Power of Attorney
You may hear a POA referred to as a "springing" or a "durable" POA.
A springing POA comes into effect once someone is incapacitated, or upon some other event.
A durable POA is in effect the moment that you sign it.
Clients sometimes ask me why they should sign a durable POA- after all, the person has the power to take their assets anytime, and why should they have that power? My response is always, and has always been: you trust them, right? Why wait for "some event" to determine when the springing POA springs? If you don't trust them to do the right thing while you are healthy, do you trust them to do the right thing once you're incapacitated?
A springing POA comes into effect once someone is incapacitated, or upon some other event.
A durable POA is in effect the moment that you sign it.
Clients sometimes ask me why they should sign a durable POA- after all, the person has the power to take their assets anytime, and why should they have that power? My response is always, and has always been: you trust them, right? Why wait for "some event" to determine when the springing POA springs? If you don't trust them to do the right thing while you are healthy, do you trust them to do the right thing once you're incapacitated?
Friday, September 25, 2009
Which Brings Us To- Wait, What's a POA?
All of this discussion about a document called a POA, and I suppose I should define it quickly for you.
A power of attorney is a document in which you give legal authority to somebody else to do certain things on your behalf. The substance of the POA, basically, is just identifying the "somebody else," the "certain things," and when the POA goes into and stays in effect. I'll get into that last bit during the next post.
You need one so that you can make sure that if you are unable to handle your affairs, someone else can do it for you and the authorities (banks, mostly) won't give you a hard time about it.
I said it a couple days ago, but it bears repeating: you don't want to be caught without one.
You don't want to be caught without one.
It is difficult and expensive to get the legal equivalent of a POA after the fact. The laws are a pain in the neck precisely to stop people from usurping the resources of some incapacitated person late in the game. This is why you must take care of this before you need it. If you need one, it's too late.
A power of attorney is a document in which you give legal authority to somebody else to do certain things on your behalf. The substance of the POA, basically, is just identifying the "somebody else," the "certain things," and when the POA goes into and stays in effect. I'll get into that last bit during the next post.
You need one so that you can make sure that if you are unable to handle your affairs, someone else can do it for you and the authorities (banks, mostly) won't give you a hard time about it.
I said it a couple days ago, but it bears repeating: you don't want to be caught without one.
You don't want to be caught without one.
It is difficult and expensive to get the legal equivalent of a POA after the fact. The laws are a pain in the neck precisely to stop people from usurping the resources of some incapacitated person late in the game. This is why you must take care of this before you need it. If you need one, it's too late.
Thursday, September 24, 2009
POAs are Easy to Get- Really Easy.
POAs are simple forms, and most lawyers have them. They are very easy for a lawyer to draft and modify, and they are very inexpensive. Most lawyers throw them in as a part of any basic will package (which is another topic- you need a will. Believe lawyers when they tell you this. Unless you're Daddy Warbucks, it's not all that difficult/expensive, either.
The main requirement for signing a POA is that you need to be "competent" to sign a legal document. You need to be 18. You also need to have sufficient mental "capacity" to understand what you're doing. This is a little bit more of a fuzzy area (no pun intended), especially if you're dealing with a client who...has their good days and their bad days. However, lawyers who do this sort of thing know when somebody is "with it" enough to sign one of these documents.
Bottom line, though, if you're healthy, of sound mind (don't listen to your spouse- you're probably of sound mind despite anything they say), and over 18, you are probably fine to have a POA drafted. And it's a good thing- there's not a moment to waste.
The main requirement for signing a POA is that you need to be "competent" to sign a legal document. You need to be 18. You also need to have sufficient mental "capacity" to understand what you're doing. This is a little bit more of a fuzzy area (no pun intended), especially if you're dealing with a client who...has their good days and their bad days. However, lawyers who do this sort of thing know when somebody is "with it" enough to sign one of these documents.
Bottom line, though, if you're healthy, of sound mind (don't listen to your spouse- you're probably of sound mind despite anything they say), and over 18, you are probably fine to have a POA drafted. And it's a good thing- there's not a moment to waste.
Wednesday, September 23, 2009
Power of Attorney- Get One!
This and the next few posts will be about a legal document known as a "power of attorney" (POA). Suffice it to say- you need one, even if you're young and healthy, because it will save you and your family untold trouble and expense down the road.
I will discuss the different types of POAs, and how easy they are to get.
However, just keep this in mind- if you become incapacitated (due to dementia or due to illness), nobody can manage your affairs because you never gave them the legal ability to do that. If somebody needed to take care of you for an extended period of time, they would have to go to court in order to secure that ability. It would cost well in excess of $10,000. Just for reference sake, a POA can be had as part of a simple will package for less than $500. It doesn't make any sense to do anything else.
I will discuss the different types of POAs, and how easy they are to get.
However, just keep this in mind- if you become incapacitated (due to dementia or due to illness), nobody can manage your affairs because you never gave them the legal ability to do that. If somebody needed to take care of you for an extended period of time, they would have to go to court in order to secure that ability. It would cost well in excess of $10,000. Just for reference sake, a POA can be had as part of a simple will package for less than $500. It doesn't make any sense to do anything else.
Tuesday, September 22, 2009
The Customer Is Right, Or You're Out of Business
As Seth Godin would say here:
http://sethgodin.typepad.com/seths_blog/2009/09/win-the-fight-lose-the-customer.html
You may realize you're right, but if you make that plainly clear to your customer, you can assure yourself of that customer going somewhere else. Especially when there's so much competition.
On an aside, the beauty of the Internet is that you can quote from a hundred different sources saying more or less the same thing, in slightly different ways. And here's the best part: it only takes a matter of moments to find all of those sources.
http://sethgodin.typepad.com/seths_blog/2009/09/win-the-fight-lose-the-customer.html
"The customer is always right" doesn't mean that they'd win in court or a debate. It means, "If you want the customer to remain a customer, you need to permit him to believe he's right."Or as Dale Carnegie said once (paraphrased), "Sure, I told him [in an argument]. But I never sold him anything."
You may realize you're right, but if you make that plainly clear to your customer, you can assure yourself of that customer going somewhere else. Especially when there's so much competition.
On an aside, the beauty of the Internet is that you can quote from a hundred different sources saying more or less the same thing, in slightly different ways. And here's the best part: it only takes a matter of moments to find all of those sources.
Monday, September 21, 2009
Brilliant Legal Mind Does Not Equal Brilliant Attorney
Lawyers are supposed to solve problems. Sometimes that takes brilliant legal minds, deductive reasoning, and passionate advocacy for a client.
Usually, though, a healthy sense of common sense, compassion, and a little quick thinking will more than fit the bill. Do you know any professions where these qualities wouldn't be helpful? I don't, and I think that's one more reason why you don't always need a lawyer- you need a dispassionate sounding board. Lawyers, in case you didn't know, don't acquire these skills in law school, and tend not to have them in any greater quantity than other professions.
Usually, though, a healthy sense of common sense, compassion, and a little quick thinking will more than fit the bill. Do you know any professions where these qualities wouldn't be helpful? I don't, and I think that's one more reason why you don't always need a lawyer- you need a dispassionate sounding board. Lawyers, in case you didn't know, don't acquire these skills in law school, and tend not to have them in any greater quantity than other professions.
Friday, September 18, 2009
What were you thinking? Actually, don't answer that.
An ordinance in Blairstown, NJ regulates the planting of shade trees:
171-2. Shade trees. The streets of the township shall be used for the purpose of public travel only, with such other use of the same as is necessarily connected with public travel. Shade trees may be planted along the streets, highways, and alleys, but not within the prescribed limits of the same. Such trees shall be planted so as not to obscure light and air [Ed: ?!] and shall not be so close as to interfere with the lawful use of such streets, highways and alleys. They shall be properly trimmed by the owners of adjoining premises. No person shall wantonly or negligently cut or destroy any such shade trees without the consent of the owner of the adjoining premises and of the Committee and occupants.
Thursday, September 17, 2009
Landlord-Tenant: Should You Go It Alone?
It occurred to me yesterday while writing the post on speeding tickets and municipal court that it might not be a terrible idea to represent yourself in landlord-tenant court as well. Especially where it deals with the recovery of a security deposit, the law in New Jersey is extremely well-settled and there are a lot of resources on Google that should be able to help you along.
On the other hand, if you are going to be evicted and don't have another place to go, I can understand being hesitant to appear without an attorney, but financially you might have no alternative. The good news there is that by and large the law is pretty clear here as well and you can find out what to expect by just doing a little research.
On the other hand, if you are going to be evicted and don't have another place to go, I can understand being hesitant to appear without an attorney, but financially you might have no alternative. The good news there is that by and large the law is pretty clear here as well and you can find out what to expect by just doing a little research.
Wednesday, September 16, 2009
Don't Mail it In: Parking and Speeding Tickets
There are lots of parking and traffic laws in New Jersey, and even though you may be a great driver and know your way around the road, chances are that you don't know all of them. Eventually, you're probably going to get a ticket (technically, a summons). What do you do?
This isn't really legal advice so much as practical advice: if you're not a long distance away, fight it. Even if you think you're probably guilty, you aren't going to do any worse going to court than you would if you just paid it online (www.njmcdirect.com). Actually, you might do a lot better; depending on any defenses you can think up, the prosecutor might give you some sort of deal to convince you to plead guilty. You might end up with fewer points and/or a smaller fine just by attending court. Plus, you can get a sense of how the process works, and that goes a long way toward taking away the fear of the whole process.
The best part is that on the municipal level many people represent themselves in court; for a more complicated summons or a DWI there are usually lawyers involved, but you can often save yourself the trouble of hiring an attorney because the prosecutor and municipal court judge will help you out when you're there by yourself. It's an interesting experience, and I think it's worth it for anybody to try at least once.
This isn't really legal advice so much as practical advice: if you're not a long distance away, fight it. Even if you think you're probably guilty, you aren't going to do any worse going to court than you would if you just paid it online (www.njmcdirect.com). Actually, you might do a lot better; depending on any defenses you can think up, the prosecutor might give you some sort of deal to convince you to plead guilty. You might end up with fewer points and/or a smaller fine just by attending court. Plus, you can get a sense of how the process works, and that goes a long way toward taking away the fear of the whole process.
The best part is that on the municipal level many people represent themselves in court; for a more complicated summons or a DWI there are usually lawyers involved, but you can often save yourself the trouble of hiring an attorney because the prosecutor and municipal court judge will help you out when you're there by yourself. It's an interesting experience, and I think it's worth it for anybody to try at least once.
Tuesday, September 15, 2009
Why Do Small Businessowners Not Mind Working a Million Hours?
Economic profit.
Economic profit is a term in economics which is defined as total revenue less opportunity costs.
Opportunity cost is that which we could have been doing with our time or money had we not done this. I could have been eating lunch if I weren't posting to the blog, but since I would rather post to the blog I have overcome that opportunity cost.
When people work for themselves, they have a certain amount of money they need to make to overcome their opportunity cost (i.e. to overcome working for somebody else instead). If you really don't want to work for somebody else, or you're really happy where you are, the money doesn't matter because it doesn't take much of anything to overcome your opportunity cost and turn an economic profit.
The flipside of that is that if you hate your job or your situation, no amount of money will make you feel like you're "turning a profit." So control what you can- make your situation one you're happy with. Making more money might or might not be something you can control, and you can only hope it's never the deciding factor.
Economic profit is a term in economics which is defined as total revenue less opportunity costs.
Opportunity cost is that which we could have been doing with our time or money had we not done this. I could have been eating lunch if I weren't posting to the blog, but since I would rather post to the blog I have overcome that opportunity cost.
When people work for themselves, they have a certain amount of money they need to make to overcome their opportunity cost (i.e. to overcome working for somebody else instead). If you really don't want to work for somebody else, or you're really happy where you are, the money doesn't matter because it doesn't take much of anything to overcome your opportunity cost and turn an economic profit.
The flipside of that is that if you hate your job or your situation, no amount of money will make you feel like you're "turning a profit." So control what you can- make your situation one you're happy with. Making more money might or might not be something you can control, and you can only hope it's never the deciding factor.
Monday, September 14, 2009
Universal Truth of Self-Employment #6: "Overhead" isn't just financial.
This is related to last Thursday's post. Overhead is commonly defined as those costs of doing business which you have to recoup in order to at least break even. Just remember: those costs are not just financial. And the decisions you make every day to minimize overhead should take into account those extrinsic factors. If I can't get work done at a home office, and my productivity is half of what it should be, that's a lot more overhead than some cheap office space will ever be.
Friday, September 11, 2009
Thursday, September 10, 2009
Why I Don't Want a Home Office
I've spent the last couple of weeks between jobs. I wake up at a decent time during the day, and I'm plenty organized. I have my list of things I want to do. I want to enjoy myself a little during the day, but I don't have "distractions" in the sense that a lot of people do. I don't have kids or huge responsibilities. And yet the days bleed away so fast.
Part of it might be my adjusting to a new situation, but psychologically I am sitting at my desk and thinking about doing actual legal work, and I don't think I can do it. This desk is where I do all manner of other computer-related tasks, and keep my personal files. I would have a great deal of trouble putting on my "work" cap and simply moving right along.
Part of it might be my adjusting to a new situation, but psychologically I am sitting at my desk and thinking about doing actual legal work, and I don't think I can do it. This desk is where I do all manner of other computer-related tasks, and keep my personal files. I would have a great deal of trouble putting on my "work" cap and simply moving right along.
Wednesday, September 9, 2009
Laughs in Bangladesh? and Thoughts on Ties
I got this article off the Drudge Report. Say what you want, good or bad, about his politics, but the man has an eye for funny articles. Exhibit A: this one about how Bangladesh's male governmental officials may no longer wear suits and/or ties.
That's quite amusing enough, but the author of the article (I'm guessing he is doing so with his tongue about three miles into his cheek) lauds as a practical rebellion what is really an attempt at reducing the Bangladeshi government's entanglement with its corrupt energy sector. The money quote:
In other news, I could be dressed in sweats and a T-shirt, and I would welcome an air-conditioned 70 or 72 rather than the 75 mentioned in the article. Remind me not to move to Bangladesh.
That's quite amusing enough, but the author of the article (I'm guessing he is doing so with his tongue about three miles into his cheek) lauds as a practical rebellion what is really an attempt at reducing the Bangladeshi government's entanglement with its corrupt energy sector. The money quote:
In addition to eliminating pointless and uncomfortable decorative elements from men’s clothing, the move will help minimize the need for air conditioning. Accompanying the government’s laudable decision was an order not to turn air conditioners in government buildings below 75 degrees F.I deny that I am the type of "inveterate masochist" that the author holds out as the sole supporter of neckties, but I still think they (and what society now considers to be "professional" dress, including a tie and a suit) have significant value, especially to lawyers. Dress has a psychological effect on both you and the people with whom you interact, and if you project a professional image, (and that's what you're looking to get from people), you're bound to have a positive outcome.
In other news, I could be dressed in sweats and a T-shirt, and I would welcome an air-conditioned 70 or 72 rather than the 75 mentioned in the article. Remind me not to move to Bangladesh.
Tuesday, September 8, 2009
Do lawyers always mean bad news?
I know that this cute little saying I have doesn't hold true for corporations necessarily, but for individuals I stand by it.
I hope you never need a lawyer- lawyers always mean problems.
I have dealt with one case in my life, an adult adoption, in which a lawyer was a good thing and came in to the picture specifically to create a happy moment. Otherwise, lawyers only get involved once there are big problems in somebody's life.
Not sure what to think about this, but there it is.
I hope you never need a lawyer- lawyers always mean problems.
I have dealt with one case in my life, an adult adoption, in which a lawyer was a good thing and came in to the picture specifically to create a happy moment. Otherwise, lawyers only get involved once there are big problems in somebody's life.
Not sure what to think about this, but there it is.
Friday, September 4, 2009
Ways not to find a lawyer: Craigslist
I don't necessarily mean that you shouldn't look on craigslist ads for lawyers. If you think that's the best way for you to actually find a lawyer, and you don't know anybody else in the whole wide world who's ever known anyone who's had a lawyer or used a lawyer or thought about a lawyer...
but seriously. Don't post on craigslist asking a legal question and looking for a lawyer. In addition to the desperate people who might message you back, there are also scammers and spammers. And those people might, just might, be convincing enough over email to take advantage of you. The lawyer-client relationship is a fiduciary one, and you can't afford to be taken advantage of precisely when you're vulnerable. (You are vulnerable, otherwise you wouldn't be looking for a lawyer).
but seriously. Don't post on craigslist asking a legal question and looking for a lawyer. In addition to the desperate people who might message you back, there are also scammers and spammers. And those people might, just might, be convincing enough over email to take advantage of you. The lawyer-client relationship is a fiduciary one, and you can't afford to be taken advantage of precisely when you're vulnerable. (You are vulnerable, otherwise you wouldn't be looking for a lawyer).
Thursday, September 3, 2009
...and why most people can't follow that advice
I had this thought after posting yesterday's excerpt from Matt Homann's blog. In order to determine effectively whether you are being nourished or poisoned by someone's presence, you have to be able to:
1. Establish a baseline.
2. Know what it means to feel more or less energetic, and admit same to yourself.
3. Know how to measure present feeling against past feeling, and admit same to yourself.
I don't know about you all, but this is a very difficult task for me, because I'm not at all sure I'm in touch with my emotions and feelings that way. Not to sound all sensitive or anything, but that's the limiting part of this whole advice, and similar advice asking you to trust your feelings or your gut. Lawyers are often trained, exhorted, and berated to reduce decisions to a consideration of utility, and that's precisely why they fail to act with compassion toward other people. Why they often fail to bring in clients successfully. Why they can't tell whether someone is a good or bad addition to their client roster, especially when the checkbook is there to complicate things.
1. Establish a baseline.
2. Know what it means to feel more or less energetic, and admit same to yourself.
3. Know how to measure present feeling against past feeling, and admit same to yourself.
I don't know about you all, but this is a very difficult task for me, because I'm not at all sure I'm in touch with my emotions and feelings that way. Not to sound all sensitive or anything, but that's the limiting part of this whole advice, and similar advice asking you to trust your feelings or your gut. Lawyers are often trained, exhorted, and berated to reduce decisions to a consideration of utility, and that's precisely why they fail to act with compassion toward other people. Why they often fail to bring in clients successfully. Why they can't tell whether someone is a good or bad addition to their client roster, especially when the checkbook is there to complicate things.
Wednesday, September 2, 2009
Are the people you meet giving you energy or taking it away?
Matt Homann posted the following tidbit on his blog:
Not sure whether to take that client? Here's a great test from Milton Glaser he uses to avoid toxic people:
[T]here is a test to determine whether someone is toxic or nourishing in your relationship with them. Here is the test: You have spent some time with this person, either you have a drink or go for dinner or you go to a ball game. It doesn’t matter very much but at the end of that time you observe whether you are more energised or less energised. Whether you are tired or whether you are exhilarated. If you are more tired then you have been poisoned. If you have more energy you have been nourished. The test is almost infallible and I suggest that you use it for the rest of your life.
[end of Matt's post]
I really wish I would have thought of this, because you can use this well beyond the client-lawyer relations arena.
The full blog post is available here.
Not sure whether to take that client? Here's a great test from Milton Glaser he uses to avoid toxic people:
[T]here is a test to determine whether someone is toxic or nourishing in your relationship with them. Here is the test: You have spent some time with this person, either you have a drink or go for dinner or you go to a ball game. It doesn’t matter very much but at the end of that time you observe whether you are more energised or less energised. Whether you are tired or whether you are exhilarated. If you are more tired then you have been poisoned. If you have more energy you have been nourished. The test is almost infallible and I suggest that you use it for the rest of your life.
[end of Matt's post]
I really wish I would have thought of this, because you can use this well beyond the client-lawyer relations arena.
The full blog post is available here.
Tuesday, September 1, 2009
Universal Truth of Self-Employment #5: Occam's Razor
Ask a hundred people a question, you'll get a hundred different answers. However, the simplest answer is usually the best one.
In business, as in life, there are times where things really do need to be complicated. however, so often they are complicated for the wrong reasons. Unless something needs to be complicated, try as hard as you can to simplify it. Simple and elegant explanations are difficult to create (and that's why people don't bother creating them!), but they are much more effective than legalese and trickery.
In business, as in life, there are times where things really do need to be complicated. however, so often they are complicated for the wrong reasons. Unless something needs to be complicated, try as hard as you can to simplify it. Simple and elegant explanations are difficult to create (and that's why people don't bother creating them!), but they are much more effective than legalese and trickery.
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