Attention Do-It-Yourself Legal Consumer: Caveat Emptor

Buyer BewareFor the price, do-it-yourself estate planning can be a pretty attractive option in the internet age. After all, who doesn’t know how to “point and click”? Or “guess and click,” as the case may be.

To that point, I came across a question on a legal Q&A site recently that I think highlights the risks that come with DIY legal web sites. The questioner asked (grammatical errors excluded):

I used a popular online legal documents website to put together a Revocable Living Trust. As grantor, I put my mother’s name as the trustee. But do I still maintain the power the trustee has? Or, do I also need to declare myself as a trustee?

What does a legal consultation mean to the legal consumer?

Never mind that a typical estate planning consultation would undoubtedly include an explanation of the role a trustee plays in administering a trust. But assuming a revocable trust was even right for the client’s situation, the discussion would invariably include naming an initial trustee, as well as one or two alternates. It would also touch on the importance of actually funding the trust, since the trustee’s powers only apply to trust assets.

While there’s no clear right or wrong answer to the question asked above, and no one-size-fits-all estate planning solution, questions about Trustees, Personal Representatives and Agents under general Powers of Attorney are usually answered before the documents are drafted. Or at the very least, before the drafts become final.

In the questioner’s case, naming the mother as sole trustee may or may not have been sufficient to achieve this person’s goals. On the other hand, maybe this person should have named themselves as trustee. There’s really no way to know for sure.

But sadly, not only was this apparently glossed over or neglected, the questioner was already confused as to what he or she actually purchased, and how it even worked. As a result, there’s a very real possibility that the person will need to purchase an amendment to the original trust so that the trustee issue can be clarified. Money well spent? Probably not.

Technology has given us more do-it-yourself options

Now, I’m pro-choice. I think consumers are capable of making informed decisions about a particular product or service. Unlike days past, modern technology and the internet afford today’s diligent and responsible consumer an abundance of options for researching and choosing among countless products and service providers.

The same goes for consumers with a do-it-yourself mindset. Gone are the days when the DIY enthusiast would have to trudge to the local library looking for how-to books to find step-by-step instructions on completing a desired task.

This holds true even in the legal services arena. What used to require taking time out of work to meet with an attorney in some stuffy office location in the city can now be handled by means of a secure internet connection and video chat software. Confidential documents can be shared and accessed in the “cloud.” In many countries, including the United States, an e-signature is as legally valid as the pen-to-paper variety.

And for the legal DIY consumer who, in the past, insisted on purchasing some prepackaged legal forms from the nearest stationary store, as we all know, there are websites that will produce all manner of legal documents – like rental agreements, employment contracts, quitclaim deeds, wills, trusts and powers of attorney.

For a fraction of the cost of hiring a lawyer, those DIY consumers are perfectly content to fill in the blanks, to “write up their own wills,” to create their own leases, and to do whatever else they heard they might need from someone, somewhere …

As an enthusiastic supporter of the empowered consumer, I get it. Lawyers are, in many ways, the car mechanics of the service industry (no offense intended) – knowledgeable about things many of us know nothing about, and necessary when something goes terribly wrong.

So by all means, do your homework, shop around, learn as much as you can on your own, become an informed consumer, and use that information to your advantage when seeking out legal services.

The legal industry is changing and new opportunities are emerging

Because quite frankly, in legal circles, it’s common knowledge that the industry is in the midst of an existential shakeup and employment crisis. From bar associations to law schools, the profession is undergoing major adjustments brought-about by the prolonged economic downturn, as well as the technological advancements that make it easier for the average consumer to obtain legal services.

But while I am genuinely supportive of these developments and the opportunities they create, not only for the legal industry, but for legal consumers, I wouldn’t throw caution to the wind when it comes to an exclusively do-it-yourself mindset.

Caveat emptor, as the saying goes. This questioner chose to find out the hard way.

If you do it yourself, who will spot the “red flags”?

For what it’s worth, an attorney is trained to spot issues lurking around a set of facts. Rather than focus on a narrowly defined need (“I need to create a will”), the attorney must be able to “see the forest for the trees.”

In the case of estate planning, for example, a DIY consumer may think a particular document is sufficient for what he or she wants to do. But without understanding the legal cause and effect of certain facts, they may miss a crucial piece of information and set in motion a series of unintended consequences in the not-so-distant future.

I was reminded of this during a consultation with an estate planning client awhile back.

Without getting into the details and compromising my ethical obligations to my client(s), after thoroughly reviewing their situation and agreeing on a course of action, an off-the-cuff remark immediately raised a “red flag” in my mind.

A critical detail now had to be addressed in the plan in order to avoid inadvertently causing legal headaches and unnecessary legal expenses for the family.

Would this have been addressed by a do-it-yourself legal web site? If not, would the DIY consumer even know that this issue needed to be handled carefully?

If you’re not sure or don’t care either way, feel free to roll the dice. But remember, if your attorney screws something up, you can always file a malpractice claim. If doing it yourself causes you to miss something important, you only have yourself to blame.

Conclusion

Technology may be advancing and empowering the legal consumer, which is a positive sign. But buyer beware is alive and well in the digital world.

Contact my office if you are a Massachusetts resident looking for estate planning or small business legal services.