ENGAGEMENT LETTER - MEDICAID PLANNING (Married Clients)

Transcription

1 ENGAGEMENT LETTER - MEDICAID PLANNING (Married Clients) 1. IDENTIFICATION OF PARTIES. This Agreement is made this day of, 20, between BOULDER ELDERLAW--LAW OFFICE OF K. GABRIEL HEISER (hereinafter referred to as Attorney ) and ROBERT AND MARY SMITH (hereinafter referred to collectively as Client ). Attorney will provide legal services to Client as outlined in this Agreement. 2. LEGAL SERVICES TO BE PROVIDED. The legal services to be provided by Attorney to Client are: A personal interview with Client to provide an evaluation regarding Asset Protection Planning consistent with Client s intentions. Preparation of an Irrevocable Trust to hold Client s assets, for qualifying the Client for Medicaid eligibility. Follow-up meeting to review the Trust and explain it fully to Client. Preparation of documents including Wills, Living Wills, Health Care Powers of Attorney, and General Durable Powers of Attorney. Supervising the execution of all documents as required by Colorado law. Providing such legal assistance as may be required to implement the Plan including the preparation and recording of deeds, if needed. 3. RESPONSIBILITIES OF ATTORNEY. Attorney will perform the legal services called for under this Agreement and will attempt to respond to Client s inquiries and communications within 24 hours on normal business days, Monday through Friday. 4. RESPONSIBILITIES OF CLIENT. Client will be truthful and cooperative with Attorney and will furnish Attorney with accurate information requested by Attorney in order to design the Plan. Client will make any payments required by this Agreement in a timely manner. 5. LEGAL FEES. 5.1 Tasks. (i) For preliminary discussions to determine the appropriate terms of the Irrevocable Trust for Client; custom drafting of such document; explaining all terms of such document to client; supervising the execution of such document in accordance with Colorado law...$1,500

2 Often times, what at first appears to be a simple project becomes quite complex once the project is begun and details of the particular client s situation and demands become known. It would not be fair to you for me to charge you a fee based on complications that may never occur; it would not be fair to me to be paid less than the work is worth. Thus, in order to be fair to both you and the law firm: The above estimate cannot be guaranteed but is based on typical charges for similar work I have done before and assumes the total amount of attorney time will not exceed three (3) hours. Time charges for services that are not covered by the above will be charged at my then current hourly rate, which is presently $250 per hour. If you discharge the firm prior to the completion of the estate planning project, payment of all accrued time charges shall become due immediately. Additional documents: Will package for a married couple, consisting of a binder containing (2) pourover Wills, (2) Durable Powers of Attorney, (2) Health Care Powers of Attorney, and (2) Living Wills (includes up to 2 hours of attorney time, including meetings and phone consultations. If additional time is needed, it is billed at standard hourly rates.)......$550 Deed to transfer real estate to trust...$ Retainer. At the time of the signing of this Agreement, Client will pay to Attorney a retainer equal to 50% of the estimated fees, i.e., $1,110, on account of the planning, implementation and documentation services described above. 5.3 Fees Earned. Client s retainer will be placed in Attorney s trust account and applied against the fees as earned. All fixed fees are considered earned by Attorney upon completion of each stage of the legal services described in this Agreement, as follows: (i) 10% of the quoted fee upon conclusion of the initial consultation; (ii) another 65% upon completion by Attorney of the documents specified in Paragraph 5.1, above, in a form able to be signed by Client; (iii) remaining 25% after the documents are signed or, if sooner, ten (10) business days after delivery to Client by Attorney of the completed documents or, if the documents are not to be delivered to Client, then after Attorney has notified Client that the documents are ready to be signed at Attorney s office. You will be expected to pay the full balance due together with any costs or expenses as outlined in Paragraph 6, upon the Completion Date. Any outstanding balance not paid at such time will accrue simple interest at the rate of eighteen percent per annum (or one and one half percent per month) beginning ten (10) calendar days after the Completion Date. 6. COSTS AND EXPENSES. In addition to legal fees, Client will also be billed for any expenditures made on Client s behalf for recording documents with the recording office, filing fees, court fees, courier or messenger service charges, and fees and expenses for appraisers, accountants

3 or any other specialized consultants retained in connection with Attorney s representation of you. There is no charge for duplication, reproduction and printing expenses, long distance phone calls, postage, or faxes. Additionally, if Client cannot provide Attorney with a copy of Client s deed, Client will be billed $50.00 for each deed that Attorney must obtain from the county recording office. 7. CONFIDENTIALITY. All communications between Client and Attorney are confidential and will not be disclosed to anyone without Client s expressed written consent. 8. JOINT SPOUSAL REPRESENTATION. It is common for a husband and wife to employ the same lawyer or law firm to assist them in Medicaid Planning. Client has taken this approach by asking Attorney to represent both husband and wife in this planning. Client has asked Attorney to represent both of them on a joint basis. It is important that Client understand that, because Attorney will be representing both husband and wife, each of them is considered a client of the Attorney. Accordingly, matters that one spouse might discuss with Attorney must be disclosed to the other spouse. Ethical considerations prohibit Attorney from agreeing that either spouse may withhold information from the other. In this regard, Attorney will not give legal advice to either spouse or make any changes to the Plan without mutual knowledge and consent from both spouses. Of course, anything either spouse discusses with Attorney is privileged from disclosure to third parties except as otherwise indicated in this Engagement Letter. Medicaid laws and regulations offer certain protections to spouses remaining at home ( Community Spouses ). Client has articulated to Attorney that Client wishes fully to take advantage of whatever techniques are available to protect the Community Spouse. If the Institutionalized Spouse has children by a prior marriage, it is understood that these techniques will work to the disadvantage of those children. Client has, nevertheless, instructed Attorney fully to protect the Community Spouse, even at the expense of the potential Institutionalized Spouse s children of a prior marriage. It is further understood that by maximizing the protection for the Community Spouse fewer assets will be available for the Institutionalized Spouse. Client acknowledges that Attorney has advised Client to make diligent inquiry concerning any private pay requirements that facilities may have. By executing this Engagement Letter, Client indicates that Client has read the foregoing terms and conditions. Furthermore, Client is indicating Client s consent to having Attorney represent both spouses on the terms and conditions set forth. Any communications and information will be fully disclosed by Attorney to both husband and wife. Client is further informed that the Rules of Professional Conduct of the Supreme Court of Colorado require the potential clients informed written consent before a lawyer may concurrently represent two or more clients interested in the same subject matter. Attorney has explained to Client the possibility of conflict that is raised by such multiple representation. Specifically, potential conflicts in this case include, but are not limited to, the following: (a) how property should be held (e.g., in one name, in both names, a joint tenancy property); and (b) how property should be

4 disposed of and what persons should serve in fiduciary capacities (e.g., personal representative of an estate, trustee, conservator). Each Client may have different interests, goals, or perspectives regarding these or other matters. Each Client hereby expressly consents to joint representation despite the possibility of conflict. Attorney may withdraw from representing one or both spouses if there is an actual conflict between the interests of each Client, provided the withdrawal is permitted under the rules of the Supreme Court of Colorado. 9. FIDUCIARY CONFLICT WAIVER. Client hereby authorizes Attorney to represent any fiduciary of Client (such as an attorney-in-fact under a Durable Power of Attorney) and to release any and all information and documentation to such fiduciary without limitation in regard to such representation. It is understood that providing advice to Client s fiduciary may cause a conflict of interest to arise. Client has carefully considered the possibility of a conflict between Client and Client s fiduciary. By signing this Agreement, Client acknowledges that such conflict may arise and waives such conflict of interest as it applies to Attorney. 10. ONLY REPRESENTING THE PARENT(S). In most cases, we find it best just to represent the elder family member(s). The elder person will be our client, and the other family members will not be represented by us. We owe a duty of undivided loyalty to our client and are required to maintain the confidentiality of all attorney-client communications. However, communication with other family members may still occur, but only with the explicit consent of the elder client. In addition, we will be unable to answer legal questions or otherwise advise the other family members about the effect of any documents prepared for or advice given to the elder client. Finally, the elder person would be our client regardless of who pays for our legal services on behalf of the elder client. If other family members have questions about our advice or legal documents prepared for the elder client, it is advisable for them to obtain their own attorneys to represent them for this purpose. 11. TERMINATION BY CLIENT. Client may terminate Attorney s representation at any time for any reason but agrees to pay fees earned and expenses incurred by Attorney prior to the date of the written notice of termination; such writing may be in a letter or from Client to Attorney. The requirement of a writing is to avoid any misunderstandings between the parties that termination has occurred. The fees earned by Attorney shall be calculated as set forth in Paragraph 6. For example, Client shall be liable for 75% of the full fee if termination occurs after Attorney has completed the Plan and documents. 12. TERMINATION BY ATTORNEY. Attorney may stop representing Client if Client fails to fulfill this Agreement. Attorney must notify Client of Attorney s intention to withdraw from representing Client in writing. Client agrees to pay Attorney for all fees earned and expenses incurred prior to the date of withdrawal. The fees earned by Attorney shall be calculated as set forth in Paragraph FAX, . Attorney may communicate with Client by facsimile ( fax ) and by electronic mail ( ). Fax and communications with Attorney are not encrypted. The law regarding application of the attorney-client privilege to fax and communications is evolving,

5 and such communications may or may not be deemed to be subject to the attorney-client privilege. If you do not want Attorney to engage in fax or communications with you, you must notify us in writing. Unless Attorney receives such written notice, we may communicate with you by fax and e- mail. 14. WORK PRODUCT. During the course of this Agreement, Client may provide Attorney with documents or other items which will be maintained in Attorney s file. All of Attorney s work product will be owned by Attorney. However, Client will retain title to Client s original documents. 15. DISCLAIMER OF GUARANTEE. Nothing in this Agreement and nothing in Attorney s statements to Client will be construed as a promise or guarantee regarding the outcome of Client s matter. Attorney makes no such promises or guarantees. Attorney s comments about the outcome of Client s matter are expressions of opinion only. If there is anything in this engagement letter that is unclear to you, please let us know so we can discuss it with you. If the terms outlined above are satisfactory to you, please sign this letter as acknowledgment that you have read and understood it and wish us to proceed to jointly represent you. Clients: The parties have read, understood and agreed to these terms as of the date first above written. ROBERT SMITH MARY SMITH BOULDER ELDERLAW--LAW OFFICE OF K. GABRIEL HEISER BY: K. GABRIEL HEISER