[WSBAPT] Long Term CIR

Mon Sep 12 14:46:41 PDT 2022

Josh, again it might just be my age and increased loss of risk tolerance
and desire to take less complicated matters. But I remember about 15 years
ago when I was at a WSBA estate planning conference and a couple of the
presenters put on an ethics panel about husband and wife asking you to do
their estate planning. The scenario was, wife gets up to go to the bathroom
and husband starts telling attorney, “don’t tell my wife, but blah, blah,
blah…”. The consensus was you should decline to represent because you are
already compromised and cannot waive around. You did a good job recognizing
this in your response to Paul.

Obviously this is more complicated than the WSBA scenario above, but when I
hear the man did not really want an attorney in the first place, my mind
starts going down the rabbit hole of people misrepresenting their estate to
the other CIR individual and why we have two attorneys for Pre-Nups or even
Cohabitation Agreements.

So, I’m just saying I would not want to worry about the situation and would
let someone else take it on if they want to represent both.

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

324 West Bay Drive NW, Suite 201

Olympia, WA 98502

(360) 866-4000 phone

(360) 866--3832 fax

www.buddbaylaw.com

COVID POLICY:

*Our firm continues to follow guidance from the CDC and Governor Inslee’s
office regarding social distancing and the wearing of face coverings, and
we encourage the public and our clients to do the same.  Our staff is still
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understanding.*

*From:* wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
*On Behalf Of *Joshua McKarcher
*Sent:* Monday, September 12, 2022 2:18 PM
*To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
*Subject:* Re: [WSBAPT] Long Term CIR

Hi Tom,

I truly value your perspective and want to learn here: Why does Paul’s
original description scream risk that is so far beyond planning that I have
always assumed planners do for unmarried couples or married couples with
kids from prior marriages (even one they wish to disinherit)? I do not
serve a ton of CIR couples, so it seems as though there may be something I
am missing.

Are you willing to elaborate? If they are willing to pay the fees necessary
to address the risks and “cabin them in,” I am not understanding why this
is so unusually risky. But I learn every day! 😊

All my best, Josh

*From:* wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
*On Behalf Of *Tom Westbrook
*Sent:* Monday, September 12, 2022 3:00 PM
*To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
*Subject:* Re: [WSBAPT] Long Term CIR

I realize that I am on old guy, but my advice here is “run Forrest run”……………

This has too many traps and is the amount you get paid really worth the
risk?

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

324 West Bay Drive NW, Suite 201

Olympia, WA 98502

(360) 866-4000 phone

(360) 866--3832 fax

www.buddbaylaw.com

COVID POLICY:

*Our firm continues to follow guidance from the CDC and Governor Inslee’s
office regarding social distancing and the wearing of face coverings, and
we encourage the public and our clients to do the same.  Our staff is still
working remotely much of the time so electronic communication by phone and
email continues to be encouraged.  We appreciate your patience and
understanding.*

*From:* wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
*On Behalf Of *Joshua McKarcher
*Sent:* Monday, September 12, 2022 1:53 PM
*To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
*Subject:* Re: [WSBAPT] Long Term CIR

Hmmm. I better test myself here: An unmarried couple doing joint estate
planning is forming a joint representation no different than a married
couple, or two business partners . . . right? No secrets, and if they fight
and can’t solve it, they both lose you.

This is not a pre-nup; it’s two people planning together. You can’t keep
secrets of Client 1 from Client 2 (which I bring up right after saying
“Hello” in my conference room, before I care if they’re married or not),
etc., but otherwise, I’m not sure I follow what conflicts there are here.

Aside from that, however, here this couple seems probably very likely to
have a CIR that would indeed produce “spousal-heirship-like results” after
the death of one of them. But by planning they will make that complication
largely irrelevant by doing it in wills or a trust. I think?

And they will have the benefit of lifetime powers for finances and health
care, which could be unpleasant surprises for them if certain family
“disapprove.” (The pre-*Obergefell* same-sex couple problem.)

At most you may wish to ask them if they want the documents (if it gives
property to the other of them) auto-revoked upon physical separation or
“something” equivalent to legal separation or divorce. (I have no idea if
Washington allows CIRs to be dissolved by a court filing like a legal
separation or divorce. I’m just sitting here realizing I’ve never had the
situation present itself.)

Good luck!

Best, Josh

*From:* wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
*On Behalf Of *Roger Hawkes
*Sent:* Monday, September 12, 2022 2:18 PM
*To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
*Subject:* Re: [WSBAPT] Long Term CIR

Yes separate estate plans work; waiver of conflicts is harder because no
one really knows what they ‘own’.

*From:* wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
*On Behalf Of *Paul Neumiller
*Sent:* Monday, September 12, 2022 10:02 AM
*To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
*Subject:* [WSBAPT] Long Term CIR

I received a call by a man who wants to do estate planning for him and his
wife of thirty years.  Prior kids on both sides.  At the end of the call
setting the appointment, he sort of chuckled and said “Well, I just call
her my wife.  We never married.”  Uh-oh.  So, if memory serves me, I don’t
think you can inherit under a CIR.  So, do I just prepare estate plans for
them as if they are separate people?  Is this a conflict that I can even
“disclose and waive” around?  Rumor is that the man was hesitant in even
going to an attorney.  Any advice would be great.

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