HOUSTON POLICE OFFICERS PENSION SYSTEM ESTATE-PLANNING POLICY SECTION 3100

Transcription

1 ESTATE-PLANNING POLICY 1

2 TABLE OF CONTENTS SECTION PAGE 3100 INTRODUCTION PURPOSE ELIGIBILITY STAFF ATTORNEY CERTIFICATION BY THE TEXAS BOARD OF LEGAL SPECIALIZATION MALPRACTICE INSURANCE AND LIABILITY PROCEDURE PRELIMINARY SCREENING PROCESS RELEASE OF LIABILITY SCOPE OF SERVICES ATTORNEY-CLIENT RELATIONSHIP CONFIDENTIALITY TEXAS PUBLIC INFORMATION ACT DOCUMENT RETENTION DUAL REPRESENTATION AND CONFLICTS OF INTEREST CHANGED CIRCUMSTANCES COST OF SERVICES UPDATED ESTATE-PLANNING DOCUMENTS

3 3100 Introduction The Board of Trustees ( Board ) of the Houston Police Officers Pension System ( HPOPS ), pursuant to statutory authority under the provisions of Article 6243g-4, Vernon s Annotated Texas Statutes (VATS), and under Section 67, Article XVI, Texas Constitution, has been given the responsibility for the general administration, management, and operation of the pension system. The applicable laws governing the Board s issuance of policies is contained in Section 6(b) and 6(f) of Article 6243g- 4 VATS, and any agreements pursuant to Section 27, thereof Purpose The HPOPS Board is committed to the efficient and effective fulfillment of the mission of HPOPS, which is to responsibly manage the system in the best interests of the members and beneficiaries so that they may have peace of mind knowing their pension benefits are secure. To that end, it is the Board s opinion that basic estate planning serves to support each member and each married member s spouse s peace of mind concerning the management and distribution of their assets in the event of mental incapacity or death The HPOPS Board adopts this policy in order to set guidelines for the estate-planning services offered by HPOPS through its staff attorney/s Eligibility HPOPS members, such members spouses, survivors, such survivors spouses, HPOPS staff members and such staff members spouses are eligible for the herein described estate-planning services All above-described parties shall be referred to as the member and the member s spouse or members and the members spouses throughout the remainder of this Policy. In this Policy, such reference specifically includes survivors, such survivors spouses, HPOPS staff members and such staff members spouses A final determination of eligibility cannot be made prior to the results of the preliminary screening process (outlined below) Staff Attorney HPOPS shall employ one or more licensed attorneys whose duties shall include providing estate-planning services to members and such members spouses. 3

4 The staff attorney shall be available to meet with members and such members spouses at a mutually agreeable time during HPOPS regular business hours to discuss generally the legal implications of estate planning and to prepare certain agreed estate-planning documents HPOPS shall pay all costs and expenses related to written, electronic or other materials and continuing-legal-education courses that the staff attorney determines are necessary to maintain and expand his/her competence in estate-planning and related law Certification by the Texas Board of Legal Specialization The staff attorney may or may not be certified in estate planning by the Texas Board of Legal Specialization The staff attorney shall disclose to the member and the member s spouse the staff attorney s certification status. The member and the member s spouse must acknowledge such disclosure and consent to representation in light of the staff attorney s certification status Malpractice Insurance and Liability The HPOPS Board shall purchase from an insurer authorized to engage in business in the State of Texas one ore more policies of insurance that provide coverage for the staff attorney(s) for the costs and expenses associated with the defense of all claims or lawsuits that arise in connection with the estate-planning services, and for liability imposed as damages against the staff attorney(s). The cost of such insurance shall be paid from the assets of the HPOPS fund In the event applicable insurance is unavailable or the carrier denies coverage, the HPOPS Board shall pay the costs and expenses associated with the defense of all claims or lawsuits that arise in connection with the estate-planning services, and for liability imposed as damages against the staff attorney(s). Payment for such costs, expenses and damages shall be paid from the assets of the HPOPS fund The HPOPS Board shall pay the costs, expenses and damages as set forth in section without regard to the allegations or causes of action asserted or pled against the staff attorney(s) No policy of insurance may provide for coverage of nor may payment be made on behalf of the staff attorney(s) for liability imposed or expenses incurred because of the staff attorney(s) personal dishonesty, fraudulent breach of trust, lack of good faith, intentional fraud or deception or intentional failure to act prudently. 4

5 By adopting this Policy, the Board agrees no further action is needed (including but not limited to a majority vote of the Board) to effectuate the terms of this section. The Board further agrees that the terms of this section are binding until revoked By adopting this policy, the Board confirms it has been advised to seek outside legal counsel regarding the terms of this section, and that the Board consents to the terms as set forth herein Procedure Each member and each member s spouse wishing to utilize the estateplanning services must first contact HPOPS and undergo a preliminary screening process (outlined below) Following the preliminary screening process, the member and the member s spouse shall be provided a Will-Fact-Sheet that must be completed and returned to the staff attorney prior to the initial appointment with such staff attorney The staff attorney shall review the Will-Fact-Sheet submitted by the member and the member s spouse and, in the staff attorney s sole discretion, determine whether representation of the particular member and the member s spouse is possible If representation is not possible, the staff attorney shall advise the member and the member s spouse and shall return the original Will-Fact-Sheet. No attorney-client relationship will exist, but any information obtained shall be kept confidential (outlined below) If representation is possible, the staff attorney shall contact the member and the member s spouse to set up an initial appointment. The staff attorney(s) shall, during the initial appointment, assist the member and the member s spouse with any portion of the Will-Fact-Sheet that the member and the member s spouse cannot complete. More than one appointment may be required The staff attorney shall notify the member and the member s spouse upon completion of the agreed estate-planning documents. The member and the member s spouse must execute all documents prepared by the staff attorney at HPOPS office All married members must attend all estate-planning appointments with their spouses. 5

6 3107 Preliminary Screening Process Following contact by the member and the member s spouse, HPOPS and the staff attorney shall check for conflicts of interest between the member and the member s spouse and HPOPS If a conflict of interest is discovered, the staff attorney shall decline representation of the member and the member s spouse. The staff attorney, in his/her sole discretion, may represent the affected member and the member s spouse at a future point if the conflict of interest is resolved Members and such members spouses who are eligible to utilize the estateplanning services must sign a release of liability against HPOPS and the Board (outlined below) Release of Liability A member and such member s spouse who utilize the estate-planning services shall, in writing, release HPOPS and the Board from any and all liability for claims that may arise in connection with the legal services This release of liability exists solely between HPOPS and the member and such member s spouse, and will not be entered into through or during any appointment with the HPOPS staff attorney Scope of Services The staff attorney shall prepare only the following estate-planning documents*: Basic Will with guardianship provisions; Testamentary trust; Durable Power of Attorney; Durable Medical Power of Attorney; and Directive to Physicians. (*Each member and each member s spouse will have individualized needs, and not every document listed above will be appropriate for every member and every member s spouse). 6

7 The HPOPS staff attorney shall not represent the member and/or the member s spouse in any other matters, and shall not probate any Will prepared on behalf of the member and/or the member s spouse Attorney-Client Relationship If representation by a staff attorney is desired, the member and the member s spouse must sign the engagement letter provided by the staff attorney during the initial appointment The signed engagement letter memorializes the attorney-client relationship between the member and the member s spouse and the staff attorney. The attorney-client relationship does not exist before the member and the member s spouse sign the engagement letter The member and the member s spouse may terminate the attorney-client relationship at any time and for any reason with written notice. In the event that one spouse terminates the attorney-client relationship with the staff attorney, the staff attorney shall terminate the attorney-client relationship with the other spouse. Any and all information provided by either spouse to the staff attorney will be promptly returned to the appropriate member or the member s spouse as the case may be The staff attorney may terminate the attorney-client relationship with the member and the member s spouse at any time and for any reason with written notice Confidentiality All information obtained by the staff attorney in furtherance of the estateplanning services shall remain confidential. This applies to information obtained both prior to and following the formation of the attorney-client relationship, and whether or not the attorney-client relationship is actually formed Certain of HPOPS clerical staff will have access to the estate-planning documents for administrative purposes only. All members and such members spouses who utilize the estate-planning services shall be informed of and consent to such access. 7

8 3112 Texas Public Information Act HPOPS is a governmental entity subject to the Texas Public Information Act ( the Act ), and as a result, certain information and documents it possesses are subject to public disclosure. Although every effort will be made to prevent the public disclosure of the estate-planning documents, they may be obtainable by the public pursuant to the Act In the event a request is made by a member of the public for any estateplanning information relating to any member or such member s spouse, HPOPS shall seek a ruling from the Office of the Attorney General pursuant to the procedures set forth in the Public Information Act. In the event the Office of the Attorney General determines that the estateplanning information is obtainable by the public, HPOPS shall immediately appeal the decision to the District Court of Travis County, Texas, and ultimately to the Texas Supreme Court, if necessary Document Retention Upon completion of all estate-planning documents, the staff attorney shall return the originals and copies to the member and the member s spouse for safekeeping The HPOPS staff attorney will retain an electronic copy of the original, signed estate-planning documents prepared for the member and the member s spouse until the member s and/or the member s spouse s death plus five (5) years Dual Representation and Conflicts of Interest By adopting this policy, HPOPS and the Board consent to the staff attorneys dual representation of HPOPS and the members and the members spouses. The staff attorney s representation of the members and the members spouses is limited to the preparation of estate-planning documents, and the dual representation shall cease upon completion of the estate-planning documents HPOPS and the Board are aware that potential conflicts of interest may arise between HPOPS and/or the Board and the member and/or the member s spouse. Should a conflict of interest arise between HPOPS and/or the Board and the member and/or the member s spouse, upon notification of the conflict, the staff attorney shall terminate the attorneyclient relationship with the member and the member s spouse. 8

9 The member and the member s spouse must consent to the staff attorney s dual representation of the member and the member s spouse, and the staff attorney s dual representation of the member and the member s spouse and HPOPS. The member and the member s spouse must be aware that the staff attorney s representation of the member and the member s spouse is limited to the preparation of the estate-planning documents, and the representation shall cease upon completion of the estate-planning documents The member and the member s spouse must be aware that potential conflicts of interest may arise between the member and the member s spouse. Should a conflict of interest arise between the member and the member s spouse, upon notification of the conflict, the staff attorney shall terminate the attorney-client relationship with both parties and advise them to seek outside, separate counsel The member and the member s spouse must be aware that potential conflicts of interest may arise between HPOPS and/or the Board and the member and/or the member s spouse. Should a conflict of interest arise between HPOPS and/or the Board and the member and/or the member s spouse, the staff attorney shall terminate the attorney-client relationship with the member and the member s spouse and advise the member and the member s spouse to seek outside counsel Neither HPOPS nor the staff attorney shall bear any costs or expenses incurred in connection with the member and/or the member s spouse s retention of outside counsel Changed Circumstances The member and the member s spouse shall immediately notify the staff attorney of changed or newly discovered circumstances that arise during the representation that may create a conflict of interest between the spouses or between the member and/or the member s spouse and HPOPS. This would include any situation that creates an inconsistency between the interests of the member and the member s spouse or of either of them and HPOPS, and would specifically include but is not limited to separation, divorce, pending litigation, lawsuits or disputes regarding benefits entitlement HPOPS shall immediately notify the staff attorney of changed or newly discovered circumstances that arise during the representation that may create a conflict of interest between the member and/or the member s spouse and HPOPS. This would include any situation that creates an inconsistency between the interests of the member and/or the member s 9

10 spouse and HPOPS, and would specifically include but is not limited to pending litigation, lawsuits or disputes regarding benefits entitlement The member and the member s spouse shall immediately notify the staff attorney of changed or newly discovered circumstances that arise during representation that may affect their estates. This would include, but is not limited to, marriage, birth of children and/or grandchildren, divorce, death, promotions, inheritances, etc Cost of Services Neither HPOPS nor the staff attorney shall impose a fee for the staff attorney s services HPOPS shall not impose a fee for the administrative costs associated with the estate-planning services Updated Estate-Planning Documents The staff attorney s representation of the member and the member s spouse shall cease following return of the completed estate-planning documents The staff attorney shall, at the staff attorney s sole discretion, prepare updated estate-planning documents for the member and the member s spouse who desire them on an as-needed basis The procedure as set forth above shall apply to the preparation of updated estate-planning documents. 10