Last summer when I needed a tetanus shot I went to one of those clinics located inside the drug or grocery store.  There a nurse practitioner asked me pertinent questions, administered the shot and then told me what to expect and monitor. 

I thought about that experience today when I came across this website, http://fortcollinslivingtrust.com.  Here is someone who admits that he isn't a lawyer but will ask all the questions, "customize the documents" and then explain your estate plan to you.  Apparently there is some licensed lawyer in the back room somewhere who is drafting the documents -- but apparently not "customizing" them (??).

I was appalled, of course.  If you know anything about me and my approach to estate planning you know that I think drafting the documents is the least of what I do.  My value is in knowing the questions to ask and the consequences of your answers.  I earn my keep by explaining  the plan in terms you can understand because if you don't understand your estate planning documents the plan probably will not work.  Drafting the documents isn't really where a legal background is needed.  In fact, I use sophisticated (and expensive) drafting software designed for attorneys that helps me cover all the bases and not have to re-invent the wheel on the clauses that all (or most) documents should contain.  Is it really a surprise that law firms now have computers?

So, am I being hypocritical when I insist that you shouldn't let your CPA draft your corporate bylaws, LLC operating agreement or contract?  That your insurance professional shouldn't be designing your estate plan and then having an attorney "draft the documents"?  I don't think so.  

First, the nurse practitioners and physician assistants at the clinics have arrangements with licensed doctors who train and advise them.  They keep the non-doctors from making big mistakes.  That's not the same as having the doctor just "write the prescription", which is the equivalent of having the lawyer "just draft the documents." 

Second, I'm not going to the clinic with a problem I don't know how to solve.  I just need someone skilled to administer the shot correctly.  That would be particularly hard for me to do myself because I close my eyes when I get a shot!  I don't need diagnosis or counseling or explanations.  If I need those, I'm better off seeing the doctor. 

That's why I tell people they can learn get a standard living will with a form from the hospital or learn more about customizing a living will from www.agingwithdignity.org.   The former is a standard fill-in-the blank that is a legal document in Colorado.  The latter may not produce a legally enforceable document but can help you understand your options.  You may want even more customized advice, and that may come from an experienced lawyer.  But if you don't, these options are the estate planning equivalent of a tetanus shot.  They may not need much in the way of diagnosis, counseling or explanations.  That's why we make them part of our estate planning package, but we don't charge extra for them unless exceptional counseling is involved.

Don't get me wrong.  Your CPA, insurance professional, financial advisor and other key advisors can be well-versed in many aspects of estate or business planning.  They can and should be part of the team that is involved in designing and implementing your plan.  However, ask these other advisors what direct experience they have in plans that didn't work.  Are they involved in probating estates, settling trusts, or advising about contracts that were not followed?  If they don't know what can go wrong, how can they make it right?  

And consider this:  When the plan or contract doesn't work, who will be held responsible?  If your answer is the lawyer, how can that be the case if all the lawyer did is "draft the documents" or worse, there was no lawyer involved?  Ask the CPA, insurance professional, or consultant whether he or she has liability insurance that will protect you if their work is faulty.  To the best of my knowledge, CPAs, insurance professionals and financial advisors can't get malpractice insurance that covers designing, counseling and especially drafting legal plans.  Did you ever stop to consider why that is? 

Oh, and don't get me started on Legalzoom and other "plug in the answer and we'll spit out the documents" internet sites or software.  I'll let my fellow attorneys Jim Eager at Southern Oregon Estate Planning and Rania Combs address those in their blogs.