Attorney Speer was featured in the February 2020 Edition of WISCONSIN Lawyer

Issues Overlap in Estate Planning & Elder Law

Estate planning and elder law matters have different goals but common overlapping issues. “For estate planning, we look at how things will be handled upon the death of a client and the powers of attorney that would authorize individuals to act on the client’s behalf while or if the client becomes incapacitated. In elder law cases, we focus on asset preservation during a client’s lifetime in the event the client would need long-term care at assisted-living or nursing facilities,” says Kristi L. Speer, a sole practitioner at Speer Law Office LLC, Phillips.

The estate planning and elder law arenas have been experiencing an increasing number of laypersons creating their own planning documents. “We’ve seen an increase in the amount of people who feel they can do their own elder law or estate planning using online forms,” says Speer. “In elder law cases, clients who do not properly plan for additional sources of assets or income might experience a loss in governmental benefits due to their resources exceeding their limits. In estate planning cases, we see common issues [including] failing to execute the will properly, not having correct witnesses or notices, and failing to recognize the impacts of a second marriage.”

“For second marriages, that is, people who have been previously divorced and married a new spouse, laypeople with children from a previous marriage incorrectly assume that if they die without a will their surviving spouse in the second marriage would receive 100 percent of their assets. However, according to the basic rules for intestate succession found in Wis. Stat. section 852.01, the dying spouse’s assets would be split 50 percent [for] the surviving spouse from the second marriage and 50 percent [for] the children from the previous marriage,” says Speer.

“Online users of forms for elder law or estate planning can sometimes get trapped into a false sense of certainty and unfortunate cycle of events. Failing to properly execute a will may lead to its invalidity, not checking one box on a healthcare power of attorney form could lead to unnecessary guardianship proceedings, and receiving additional assets or income could actually cost the recipient more in lost benefits. That’s why hiring an attorney to properly plan for all the contingencies in elder law and estate planning cases is an added value to laypersons trying to do those forms online without the necessary legal knowledge,” says Speer. “Without that assistance, laypersons could be caught in a legal cycle that does not protect their assets or have those assets go to people that were not intended to be beneficiaries.”

Another factor leading to the increase in use of online forms in rural Wisconsin is the lack of attorneys. According to 2014 membership statistics, 15 attorneys practiced in Price County.6 Today, that figure is only 17, with 64 percent of the attorneys being age 50 or older.7 An aging attorney population and lack of younger attorneys practicing in rural areas is not unique to Price County, as other counties, such as Buffalo, Jackson, Pepin, Trempealeau, Crawford, and Grant, face the same issue with 70 percent of the attorneys practicing in those counties being age 50 or older.8

“Having a small number of attorneys in a community creates situations where firms have conflicts of interest. Clients are then forced to use attorneys outside of their communities and that can lead to uneasiness in dealing with unfamiliar firms, and perhaps also an increase in the fees charged to clients,” says Speer. “We could definitely benefit from having more attorneys in our community, and tremendous opportunities await those attorneys who move to rural areas, like Price County.”