Month: December 2017

An Interview with Sarah Coenen

Bachelor of Arts: UW – Stevens Point

Juris Doctorate: Valparaiso University School of Law

Married: Yes; Corey

Kids: No

Practice Areas: Business Law and Estate Planning

DiSC Profile: C Style

Summary

“People with the C style place a high priority on Accuracy. Because they want to ensure superior results, they tend to analyze options rationally and separate emotions from facts… they’re uncomfortable with quick or risky decisions and prefer to take time to make an informed choice.” – Excerpt from Sarah’s DiSC Workplace Profile.

Undoubtedly, you have to take Personality Profiles with a grain of salt, but COME ON… What else are you really looking for in the individual who is responsible for drafting your legal documents?? Sarah is an absolute tactician. Laser-focused. And for her age, she is a fountain of knowledge. Without question, she is one of the people I most admire in the office. Sharp and humble. It’s a dangerous combination. The kind of person that people will sleep on because she doesn’t sing her own praises, but trust me, her star is rising.

Interview

KOD: “Thanks for making some time to do this, what’s your billable rate? I’m trying to figure out what this is going to cost me…”

SMC: “We’ll put this on Epiphany Time, don’t worry about it.”

KOD: Laughs. “Well I appreciate that. I’ll do my best to get you some good PR out of this.”

KOD: “First question: What were you like in High School?”

SMC: “Very quiet and reserved.”

KOD: “Did you do pretty well in High School?”

SMC: “Yeah, I always did pretty well… Except for Calculus. I hated it.”

KOD: “In High School, did you know you wanted to be in law?”

SMC: “Yeah.”

KOD: “At what point did it become a desire for you?”

SMC: “When I was 12 years old I wrote a book report on Sandra Day O’Connor—“

KOD: “—Who is that?”

SMC: “She was the first female Justice on the US Supreme Court. She inspired me.”

KOD: “What was your favorite cartoon to watch growing up?”

SMC: “Rugrats.”

KOD: “Favorite character on the show?”

SMC: “Tommy Pickles.”

KOD: “You’re a new addition to the crayon box. What color are you and why?”

SMC: “I’ve been told before that I’m a yellow crayon –“

KOD: “—What shade of yellow? Like a gold or a soft yellow?”

SMC: “Are you telling me that this is the 64 crayon box instead of the 8 crayon box?? Jeez. I guess I would say more like a standard bright yellow. Like a sunny yellow.”

KOD: “Why?

SMC: “I try to always have a positive disposition and attitude toward my work and my life.”

KOD: “What’s your favorite ‘90s jam?”

SMC: “Everybody by the Backstreet Boys.”

 

Pause. Here you go.
Resume.

 

KOD: “How many pennies do you think would fit into this room?”

SMC: “1 Trillion… No 2 Trillion.”

KOD: “A penguin walks through that door right now wearing a sombrero. What does he say and why is he here?”

SMC: Laughs. “He says, ‘Where am I?’ and he is here because he is lost and is having an identity crisis.”

KOD: “OK, enough with the crazy questions, let’s get a little more serious.”

KOD: “Tell me about 1 person outside of your immediate family that you love.”

SMC: “I would say my cousin Miranda because she is like a sister to me. I can always go to her with anything. She is two years younger than me, but she has a lot of wisdom. And she brings a sarcastic tone to conversations that I really appreciate.”

KOD: “Why are you an attorney? Other than your inspiration from Sandra Day O’Connor.”

SMC: Laughs. “I enjoy the logical process. I enjoy helping people. And attorneys get a bad rap sometimes, so I accept and enjoy the challenge of changing that narrative.”

KOD: “What is 1 other career that interested you in the past?”

SMC: “When I was really little I wanted to be a firefighter… But I thought about teaching for a while in college.”

KOD: “What is one thing that you are proud of yourself for?”

SMC: “Wow, that’s a hard question Kelton.” … “I guess I’m proud of myself for not giving up all the different times I could have on my way to becoming an attorney. Being rejected. Undergrad. Law School. I just kept going.”

KOD: “You got rejected for Undergrad and Law School?”

SMC: “Yeah. So for undergrad, I really wanted to go to UW-La Crosse but I got wait-listed. That ended up being a blessing in disguise though because UW-Stevens Point was amazing. And then for law school, taking the LSAT was really hard. I had to take it twice to improve my score before I got into Valparaiso. And it’s really hard for me to talk about it, but let’s just say I didn’t pass the Bar on my first try. There were a lot of times I thought about giving up but I didn’t.”

KOD: “That’s amazing. I’m glad you didn’t quit.”

KOD: “Pretend I’m thinking about hiring you as my attorney to do some legal work for me. What do you bring to the table?”

SMC: “I am always upfront and honest with my clients. I like to think that I’m a pretty nice person to work with. And you’ll get a good product.”

KOD: “Pretend I’m a young attorney, fresh out of Law School. Tell me why I should apply at Epiphany Law.”

SMC: “Epiphany is a very unique environment in that – even though we have a ‘boss’ and managing partners and things like that – there isn’t the hierarchy that you find at most other firms. We are all willing to help each other and there is no “elitist” attitude that says ‘I don’t need you’ or ‘I’m better than you’ –“

KOD: “—Why is that a good thing for a young attorney?”

SMC: “Because you don’t know as much. Law School tries to prepare you, but there is no substitute for real world experience. Being here, I was able to learn a lot, very rapidly, because people were willing to share their real-world experience with me. The culture here helped me to have confidence even when I didn’t know all the right answers. I knew I had amazing people in my corner to help at any time.”

KOD: “Do you have any advice for someone that is in Law School right now?”

SMC: “Wherever you intend to practice law after you are done with school, go to that area during your breaks and make connections in that area the best that you can. Meet with attorneys, judges, business owners. Networking is absolutely essential and that is one thing they don’t teach you in law school.”

SMC: “Also, learn how to talk to clients. Clients ARE NOT stupid. They just don’t know the law like you do. It’s on you to learn how to explain things without coming across like you are arrogant. You have to learn how to explain things in a way clients can understand and relate in order to be successful.”

KOD: “I’m a new business owner. I don’t think I have any legal work for you… But I would like to establish a relationship with a good attorney because that seems like a smart thing to do. What should I do?”

SMC: “Call. You should absolutely call. I’m not going to try and give you any advice over the phone, but there are a few basic questions that I can ask to help me figure out if we should meet or not. You’re not going to get a bill for the conversation. I won’t push you into anything. We’ll figure out if we need to meet, and either way you will feel better knowing that you now have someone in your corner when you need them.”

KOD: “Give me one thing that people miss or do incorrectly a decent amount of the time when they try to do Estate Planning on their own?”

SMC: “Language. A good example of that is with a Power of Attorney. Power of Attorney’s can be ‘springing’ or ‘immediate’, and depending on how you word the language, you may be unintentionally giving someone else control over your decisions right now.”

KOD: “What is one thing that a new business owner might forget to do?”

SMC: “If someone sets up their business entity on their own, the State does not require them to provide a draft of their bylaws / operating agreement. So, if it’s not required, there are a lot of times when people just don’t have them altogether. Those documents are essential in laying out the fundamental aspects of how the business is to be run. It helps to protect the business owner when they have those documents.”

KOD: “How does it protect them?”

SMC: “If someone sues the business, and that business owner isn’t abiding by the fundamental rules of their organization, an attorney may be able to Pierce the Veil. It’s extremely easy to Pierce the Veil if that business owner never made fundamental rules to begin with.”

KOD: “Last question: Date 1 – Marry 1 – Punch 1: Lord Voldemort, Napoleon Dynamite, Austin Powers”

SMC: “Ugh…” … “Punch Lord Voldemort, Date Napoleon Dynamite, Marry Austin Powers.” … “Can’t I just punch all three?”

Thank You

A huge thank you to Sarah for taking some time to chat with me! She is truly a treasure to work with! Thank you once again to all the readers of this blog. Because of your great support I have been approved to continue to producing palatable legal and business content into and beyond the New Year!

From all of us at Epiphany, we hope you had a very Merry Christmas and we wish – but do not guarantee – you a Happy New Year!

 

Piercing the Veil

Legal matters, business strategy and life perspectives from the mind of a non-attorney.

Calling all business owners!

No personal stories this week. Let’s get right to work.

As a business owner, you have business assets and you also have personal assets. Duh! Duh! Duh!

I make that obvious statement for a reason, though. As I get into the “meat and potatoes” of this blog, I don’t want the IDEAS to distract from the BOTTOM LINE: This blog is only relevant because business owners want to maintain that distinction – that line – between business assets and personal assets.

How does someone obtain that line of distinction?

Here’s what you do: Grab a blank piece of paper out of your printer and begin thinking of all the things that your business owns – or will own once you start it. Now, organize those things into a list (on the left side of the page) from most expensive to least expensive. Then, on the right side of the page do the same for your personal assets. Now – this part is critical – find a Sharpie Fine Point Permanent Marker; and, with a ruler, draw a perfectly straight line in between your two lists.

Viola! One distinct line between your business assets and your personal assets.

If you really want to maintain distinction between your business assets and personal assets, of course you’ll have to set up a LEGAL entity (probably an LLC or Corporation).

Ok Kelton, you’re soooo funny. But why is it important to have that distinction between business assets and personal assets?

Boring answer: To protect your personal assets if your business should ever get sued.

Fun answer: Suppose Joe Schmoe is a really wealthy guy. He made his millions the old fashioned way: Struck it big on the lotto. Now he’s bored, so he decides to buy a very small mom ‘n pop bakery (Schmoe Sweets, LLC.), because he loves to bake desserts. He has no employees, it’s just him. One day, he mops the floor in front of the display case, and as he’s going to grab the “Caution Wet Floor” sign, a young boy slips and severely injures himself. The young boy’s parents sue Joe Schmoe. What happens next?

  1. The attorney representing the little boy is only able to come after the small amount of assets that the business owns.
  2. The attorney representing the little boy comes after the assets of the business AND a huge chunk of Joe’s lottery winnings.

*The answer is “a” if Schmoe Sweets, LLC. is set up as a perfectly legitimate legal entity, and Joe follows all the rules.

*The answer is “b” if Joe Schmoe did something wrong when he set up the entity, or if he is doing something wrong now!

Guess what? It is literally in the attorney’s job description to figure out if Joe did anything wrong. 

If the attorney finds something, they can PIERCE THE VEIL, and grab at Joe Schmoe’s personal assets (lottery winnings) – in addition to the “business” assets.

So… Now you know why business owners set up LLC’s and Corporations. You also know what Piercing the Veil means! If that’s all you came here for, class is dismissed.

If you want to know what those “things” are that attorneys use to Pierce the Veil, let’s KEEP ‘ER MOVIN.

Young boy slips in Joe’s bakery and severely injures himself. The boy’s attorney will ask the following questions to try and Pierce the Veil:

  1. Is the entity operating as a legitimate business?
  • FAIL: Joe bought the business and realized that he didn’t really know how to run a business – he just likes baking – so he only opens up the bakery on Sundays for members of his church to enjoy free treats and socialize before/after church.
  1. Is there commingling of assets?
  • FAIL: Joe took out a company credit card when he started Schmoe Sweets, LLC. The card earns him 4% cashback on all purchases, so he uses it for EVERYTHING, including personal expenses like dining out, groceries, and home repairs.
  1. Is there adequate record-keeping?
  • FAIL: Joe was having a lot of trouble finding a good assistant to help him run the business, and in the span of one year he ran through 6 different assistants before finding one that stuck with him. Joe didn’t keep ANY records of the individuals he hired/fired.
  1. Is the company undercapitalized, or was it undercapitalized at formation?
  • FAIL: Joe set up a bank account in the company’s name, but normally maintains the minimum balance of $100. Bank records show very little activity in the account since it was opened. Accounting records indicate that the business costs $2,000 per month to operate.
  1. Is the company a “shell” of the business owners?
  • FAIL: Joe’s business cards, email signature, stationary, menus, and website all say: “Treats by Joe Schmoe”. There is minimal effort to identify his entity: Schmoe Sweets, LLC.
  1. Does the company disregard Bylaws / Operating Agreement?
  • FAIL: Joe’s Operating Agreement states that all corporate records are to be held at his principal place of business. Joe, instead, keeps his corporate records at his cabin up north, for safe-keeping.
  1. Are assets used for non-company purposes?
  • FAIL: Schmoe Sweets, LLC. bought a “company jet”, but Joe uses the jet only for personal vacation.
  1. Is the business being used to defraud creditors or avoid legitimate claims of creditors?
  • FAIL: Joe knows he is about to be sued. He shuts down Schmoe Sweets, LLC and transfers all its assets to a new LLC: Joe Mama’s Bakery, LLC.

Understand that these are mere examples of situations that could lend a creditor to Pierce the Veil. In all judgements, it will be the task of the judge/jury to weigh the balance of the facts in question. This means that in most cases, business owners will need to fail more than one test to be exposed.

Finally, it is important to remember that fraudulent acts on the part of a business owner will automatically bypass the corporate structure.

Special thanks to Attorney Chris Klingman for his help in authoring this blog.

Chris specializes in litigation for the Epiphany team, and has represented both sides of “Joe Schmoe’s” scenario on numerous occasions.

It’s worth mentioning that when I asked Chris if he would help me to understand something for a blog I was writing, his immediate response was, “Yes. Absolutely. In fact, I have some time right now. Let’s do it.” It was the perfect representation of the culture that has been built here at Epiphany: A passion for going above and beyond to help others.

Allow me to reiterate some context, so that you can appreciate Chris’ attitude as much as I do:

  1. Attorneys don’t “have time”. Period. Chris had time for me.
  2. I AM NOT Chris’ equal in any way with respect to career experience, business acumen, or legal knowledge. In many-if-not-most firms, non-attorneys are treated like inferiors. Chris respected me.
  3. My most popular blog took a direct aim on the business model that Chris operates in. Chris didn’t hold it against me.

I’ve gotten used to having my opinions, thoughts, and ideas respected around here. But I don’t ever take it for granted. I know it’s not like this everywhere.

There is no doubt in my mind that Epiphany Law is the firm that you want to trust with your business’ legal needs. Whether you’re working with Chris or any of our other attorneys/staff, I am confident that your experience will be as positive as the one I have here every day. It’s just in our DNA.

Thanks to all for the continued support! If you have questions, comments, or topic suggestions for us, please direct those to:info@epiphanylaw.com.

Reasons to Outsource Your General Counsel

Put simply, Outsourced General Counsel is an extension of your team. Like an in-house general counsel, an outsourced general counsel is a business’ chief lawyer or legal advisor. And other than the fact they don’t typically work ON the premises of your business, an outsourced general counsel really owns the same duties and responsibilities of an in-house counsel. Those duties and responsibilities include (but are not limited to) the identification and oversight of all legal issues across the company and its various departments, as well as the provision of key advice to the business’ key decision-maker

Outsourced general counsel services solves business’ needs  by providing a cost-effective solution way to have an experience closer to the in-house model while also getting a broader knowledge base.

Some of the key reasons to consider outsourcing your general counsel include:

  • Fixed Budget and No Surprise legal bills – your business’ legal budget for next year does not need to be a guess. When outsourcing your general counsel, you know, with certainty, what you will spend next year on legal services.
  • Responsive Service – Your outsourced general counsel will become an integral part of your team. Fr example, contracts can be reviewed before signed, HR questions can be discussed, and HR policies would always be up to date in one flat rate.
  • Proactive Risk Management – Imagine having your attorney on speed dial, for answers to issues before they become problems. Imagine being proactive rather than reactive. Being proactive ultimately saves time and money.

Typically clients who utilize Epiphany Law’s outsourced general counsel services develop a close relationship with one attorney but have access to all attorneys in the firm to handle specialized needs. The close relationship ensures priority service and the backing of the firm ensures broader expertise.

An outsourced general counsel will protect your company and ensure your business is staying on the right side of the law.

The New Business Valuation

Business owners are creative and strategic about how they live their lives. Naturally, they are extremely cautious about spending money on things they don’t “need”. Traditionally, one of the things that falls into the “I don’t need it category” is a Business Valuation. This post serves to analyze a new kind of Business Valuation, and offers 6 reasons why business owners should get one on a regular basis.

A common misconception is that all Business Valuations were created equal. There are very specific times (i.e. immediately prior to an impending sale) when a formal Business Valuation – the kind that can cost upwards of $10,000 – may be required. 99% of businesses don’t require this type of valuation on an ongoing basis, and most business owners are unwise to buy one.

What most business owners don’t know is that another kind of business valuation is available. For purposes of this article, we will refer to it as an estimate of value.

Put simply, it is an informal business valuation that considers a narrower scope of factors than its counterpart. Less detail and no promise to defend the valuation in a court of law means the cost to own is typically less than $1,000. The kicker? If you know where to look, you can find an estimate of value that is continuously updateable (online), extremely accurate, and includes Key Performance Indicators. Now THAT is something most – if not all – businesses can and should be utilizing.

Here are 6 reasons why:

  1. Better understand your business and its potential. Estimates of value can uncover key insights into the effectiveness of your business operations. How? The RIGHT report provides more than just a value; they provide Key Performance Indicators (KPIs) that serve to benchmark your company against your peers. You’ll know exactly how you are stacking up against your competitors, both locally – and nationally. Taken a step further, you will understand the areas that your company can improve to become more attractive (more valuable) to potential buyers. KPIs and other financial metrics , when analyzed correctly, uncover a path to unlocking business value.
  2. Know the value of your largest asset so you can plan for retirement. According to multiple reports, the average small business owner has 80 – 90% of their net worth tied up inside their business. It can be incredibly difficult – if not impossible – to truly plan for your retirement if you don’t have a realistic expectation of what your nest egg is worth. On the contrary, if you have an annual income goal in mind for retirement, an estimate of value can help you and your financial planner assess whether or not you are on track to meet that income goal! If you find out that you are behind the 8 ball, you can take deliberate action to grow the value of your business to the level you need to retire.
  3. Ensure the business and your family are properly protected. There are various kinds of business insurance, from general liability to crime protection. Based on the industry you are in an experienced business insurance agent can easily tell you the kinds of insurance you need. The more difficult task is determining the correct amount of coverage. Because successful businesses increase in value over time, it’s very unlikely that the amount of business insurance you needed 5 years ago is the same amount you need today. Many small business owners are underinsured based on their business value, and it’s because they simply do not have a realistic idea of what they are worth (i.e. what they need to protect). You can help your business insurance agent take the guess-work out of the amount of coverage you need by supplying them with an updated business valuation on an annual basis.
  4. Develop an Exit Plan. Many small business owners have an idea that they will pass along ownership to the next generation of workers. Problem: Most of the time, those workers do not have the financial resources available to execute a buyout when the time comes. An estimate of value can help you set expectations with the future owners of the company. Future owners can begin to prepare their personal balance sheets for a buyout. You may also choose to incorporate an incentive program to assist in expediting the succession.
  • Even if you decide to sell your business to a 3rd party, obtaining an estimate of value early in the planning process can help you manage expectations and identify opportunities for improvement.

5. Create / update buy-sell agreements with partners. Some business owners think that if they die, their family could maintain an income stream by continuing to run the business themselves or by hiring someone to handle the day-to-day management. In reality, loved ones usually do not have the skills or the desire for the job. What’s more, your co-owners may not welcome the idea of an unintended partner. That’s why buy-sell agreements are important! They serve to protect owners and families by establishing a process to buy an owner’s share of the business at an agreed upon price in the event of death, disability or retirement.

  • Just as many businesses are underinsured for business insurance, most multi-owner entities have buy-sell agreements that do not accurately reflect the current value of the business. It is recommended that buy-sell agreements be updated annually to reflect the current value of the business. These agreements should also be funded by life insurance to provide liquidity in the event of an owner’s death. Failure to appropriately fund a buy-sell agreement can leave both the company and loved ones at risk

6. Establish a trust or create an estate plan. The current estate tax threshold for 2017 is $5.49 million per individual. For married couples, that means nearly $11 million is exempt from estate taxes. While this is more than enough for most individuals to have to worry about estate taxes, business owners are among the most likely to experience estate tax issues. Truly understanding and managing your estate tax situation is impossible without an updated estimate of value. An EOV, combined with advice from an experienced estate planning attorney and financial planner helps heirs avoid the 40% tax that currently affects estates exceeding $11 million.

Epiphany Law partners with BizEquity to deliver valuation reports as part of the firm’s Exit Planning Services.

You can learn more about Epiphany Law’s business valuation services, and find our link to getting started HERE.

If you have questions or comments, feel free to get in touch!

Exit Planning: Not for the Faint of Heart

Legal matters, business strategy and life perspectives from the mind of a non-attorney.

I’m a true believer in this: Of the things in life that truly matter, that truly make a difference, that truly help us “level up” as people – those things are almost never easy.

It’s a mindset and lifestyle I first adopted at a team building event in 2009. It was actually more than an event, it was a week-long camp that 90% of our High School basketball team attended. “Do Hard Things” was the challenge our speaker continued to make to us over the course of the week. It just clicked with me, and I latched on right away.

“Hard things” are the things that have been placed in front of us that we DO NOT want to do. We know they are there, but we want to avoid them at all costs (Examples may include: difficult conversations, moving on from something/someone, breaking a bad habit, etc.). For purposes of this post, I’m going to refer to them as “challenges” rather than “hard things”; cuz, ya know, I don’t want it to get weird.

For a little extra context, let me give you a couple examples of “challenges” I’ve taken on in my own life:

  1. Quitting high school football. You should know that I come from a really small hometown. My graduating class had less than 50 students. When you’re in a small school, and you have some athletic ability, it’s basically a sin to NOT participate. “We need all the athletes we can get” is a very public sentiment. So it was a HUGE deal when, during the summer before my sophomore year, I started to get that feeling: “I really don’t want to play anymore.” I tried like hell to brush it away, to ignore it, to avoid it. As the summer grew to an end, the feeling was still there and in the pit of dread in my stomach was unbearable. I didn’t want to let anyone down, and I didn’t want to face the backlash that I knew was coming if I decided not to play. But I knew I had to be true to myself and accept this “challenge”. I definitely lost sleep over it. I’ll never forget the first day of school, when I had to walk into the head football coach’s office and tell him I wasn’t playing. To this day, it’s one of the hardest things I’ve ever done. The backlash was actually worse than I’d expected it would be: There were a lot of adults who looked down on my decision and former friends who turned their backs on me. To this day, there are “upstanding” adults in the community who won’t talk to me because I didn’t play football in high school. It’s crazy. But it’s one of the best decisions I have ever made, hands down. It was the first time that I can remember choosing to stay true to myself in the face of public scrutiny.

*And by the way, my decision had nothing to do with wanting to “specialize” in a single sport. There is enormous value in participating in multiple sports. There is also enormous value in respecting people’s personal decisions.*

  1. Becoming a financial advisor. I’m naturally introverted. So you can understand my hesitation towards starting a career where prerequisite #1 = ability to talk someone’s ear off. But I did it. In part, because I gravitated toward the analytical side of the job. The other reason that I did it is because it scared the s*** out of me. By the time I was a senior on college, I had begun forcing myself to take the challenging path, when there was one available. I learned a few things:
    • The 10% of the career that is the actual PLANNING, I was really good at. No surprise.
    • I still sucked at “networking”, and my personal network was not large enough to allow my career to truly take off. No surprise.
    • My listen-first disposition actually served me extremely well when I met with clients. I was much better than most at assessing needs, and people really enjoyed working with me. Surprise.

*I’m extremely thankful for my experience as a financial advisor. Again, it was one of the most challenging things I’ve ever done, but the life lessons I learned extend far beyond the three I have listed.*

I promise I’ll tie this into Exit Planning soon… But for the sake of completely beating a dead horse, I want to address what happens to us, internally, when we are faced with a “challenge”:

It always starts with a little voice in our head. That voice, in its own annoying little way, declares what needs to be done. We then have a decision: Act or Avoid. The natural instinct is to avoid, and while every person is different, there are generally two methods for avoiding a “challenge” that pushes us outside of our comfort zone:

  1. Avoidance by procrastination. We suppress the voice and avoid the “challenge” until the window of opportunity to act has expired (Examples: the other person ends the relationship first, the application window for the job has expired, etc.). When we handle it this way, we usually experience a lot of guilt, because we have acknowledged the “challenge”, and possibly admitted to ourselves that we should act, but we avoid action anyways.
  2. Avoidance by rationalization. Others of us have become adept at “walling off” our “challenges” by rationalizing why we shouldn’t act. “That promotion would come with so many headaches. It’s not even worth it.” The rationalization allows us to “wall off” the challenge almost as quickly as it announces itself, and we are able to pretend like it was never there in the first place.

So I’m thinking we’re on the same page now… If I lost you, I’m sorry. That took more words than I thought it was going to take.

But the bottom line is this: life gives us opportunities to “level up”. To get outside our comfort zone. And even though it’s really, really, really difficult to do it, I believe that when we accept those challenges, amazing things can happen.

That’s why I love Exit Planning.

It is the quintessential “challenge” that business owners want to avoid. Why do they want to avoid it?

I’ll give you a couple reasons here:

  1. Business owners are afraid of getting old. Exiting the business represents “the end” of an era that they have spent nearly the entirety of their adult lives building! A classic reason for avoidance.
  2. “I don’t even have enough time in the day to run my business, how am I supposed to have time to plan for an exit?” They have priorities that feel way more urgent than exit planning. A classic rationalization technique.

I would strongly encourage you to read this article to learn more about the various reasons business owners choose to avoid Exit Planning.

Basically, it’s the end of an incredibly long, challenging, amazing, stressful, wonderful, painful, rewarding journey. Business owners, even more-so than “normal” people, have a tendency to allow work to equal life. When that happens, the end of work naturally feels like the end of life. It’s pretty easy to understand why someone would avoid that.

BUT! For the few that are able to accept the “challenge” and proactively PLAN FOR THEIR EXIT, the rewards (financially and emotionally) are unmatched. ß More on the benefits of Exit Planning in a future post.

I am so filled with admiration and respect when we engage with a new Exit Planning client for the first time. Despite the façade of confidence they cloak themselves in, those of us who understand this process appreciate the internal battle that was likely waged in order for that business owner to walk through our door. A major challenge was accepted.

They say, the first step is always the hardest, and so it is with Exit Planning. That fact is not lost on us. I only hope that if I was in their shoes, I would be brave enough to do the same.

I continue to be humbled by the likes, comments, shares and general love that you have shown our blog. If you have questions, comments, or topic suggestions for us, please direct those to: marketing@epiphanylaw.com

What is a Power of Attorney?

Legal matters, business strategy and life perspectives from the mind of a non-attorney.

When I was little, sometimes mom and dad would go on vacation and leave me and my brother with Nana.

One of the things I can remember about that is mom pulling me aside and telling me that she was leaving an important note. It said something along the lines of, “If either of my children should need medical treatment between the dates of ____ and ____, I authorize _____________ [Nana] to make those decisions on my behalf.”

Then mom and dad would both sign it.

I won’t get into the psychology behind why THAT is something I vividly remember… I’ll just chalk it up to: I’m weird.

From mom and dad’s perspective, obviously the hope in leaving the note was that whoever was watching us – usually Nana – could show this note to a doctor, and be able to make immediate medical decisions on our behalf – if it was ever necessary.

In legal speak, we would refer to this as a Power of Attorney (POA) for Minor Children. Albeit an unofficial one.

To make it “official”, an attorney would likely draft it and it would be signed by a public notary. It would say essentially the same things as what my mom wrote on a notepad, but there would be no questions as to its legitimacy if Nana ever had to use it. Parents who have an official Power of Attorney for Minor Children can be 100% confident that a doctor will immediately listen to the direction of whoever is granted authority. It’s a small thing, but as we know, minutes can sometimes make a big difference in a medical emergency.

I start there because most of you who have been away from your kids for a period of time can relate to it – you probably did something similar to what my parents did, or at least thought about doing it.

Of course, the POA for Minor Children is not the only Power of Attorney you should know about…

 

Healthcare Power of Attorney: A legal form that says, “Hey, guys, if I’m ever so ‘out of it’ that I can’t think straight and make decisions for myself, I want _______________ to be able to make health care decisions for me.”

Financial Power of Attorney: A legal form that says, “Hey, guys, if I’m ever so ‘out of it’ that I can’t think straight and make decisions for myself, I want _______________ to be able to make financial decisions for me.”

Special or Limited Power of Attorney: A legal form that says, “Hey, guys, if I’m ever so ‘out of it’ that I can’t think straight and make decisions for myself, I want _______________ to be able to make ___________ decisions for me.” It designates a specific person for a specific kind of decision. Business owners, for example, often have a Special Power of Attorney, just for their business.

 

More Stuff Related to Power of Attorney:

Living Will: First, you should know that this document is completely unrelated to the conventional will and living trust that can be used to leave property at death. The LIVING WILL is used to provide guidance or state choices for treatment at the end of life. It says, “Hey, guys, if I’m ever so ‘out of it’ that I can’t think straight and make decisions for myself AND I (have a terminal condition/am in a persistent vegetative state), I (want you to/don’t want you to) pull the plug.”

Advance Directive: This term is just annoying to me. I think it exists just to confuse people. It is used to describe a legal document that tells doctors how you want them to carry out medical decisions you have made, even if you cannot communicate these decisions for yourself.

  • Healthcare POA and Living Will are two kinds of Advance Directives.
  • It’s really smart to have BOTH a Healthcare POA and a Living Will. In this case, you have designated a person AND given them instructions for handling your health.
  • Having an advance directive does not affect the quality of your care.
  • Having an advance directive does not affect life insurance or health insurance.

Final Disposition: Instructions for your burial.

Healthcare Proxy/Healthcare Agent/Surrogate: These terms are interchangeable. It is the person who you have given authority to make your healthcare decisions.

The word “Durable”: In the vast majority of cases, a Healthcare or Financial Power of Attorney can also be described as “durable”. Anyone who uses the word is simply emphasizing the fact that the Power of Attorney remains effective, even after the individual is unable to make decisions. It’s kind of like going to a restaurant and exclaiming, “I want my food to TASTE GOOD!” Duh. Of course you do… That’s the whole point of it.

  • Bottom line: “Durable” POA’s are the norm, and it takes a unique situation for a “non-durable” POA to become relevant.

Food for Thought:

So this post is all fine and dandy, and my sincere hope is that you have picked up a bit of clarity on the topic in exchange for your time. But… We really haven’t accomplished anything if nobody chooses to act on that clarity.

Science will tell us that 20% of the population will never bother themselves with a something like a POA… They just don’t give a damn.

Another 20% seemingly came out of the womb knowing that this is something they needed to do. They got it done ASAP, and probably convinced a smattering of their closest friends/family to do the same.

The remaining 60% of us are somewhere in limbo. Swaying in the breeze of indecisiveness. Somedays – like today perhaps – thinking, “Yeah, that guy makes some good points. That seems like a really smart idea. I need to do that,” only to have the thought drift away. After all, it doesn’t feel very urgent.

Imagine, for a second, that you are hosting a birthday party for your 2 year old child. Friends and family are planning to attend, and they will be at your house in about an hour. Then, like clockwork, your husband forgets to pick up a cake on the way home from work. Ooo… Triggered. What are the chances that you would make him turn around and drive 30-45 minutes to go get the cake? Pretty high, right? It feels urgent because people are going to be at your house in about an hour and the house is a mess and the world is falling apart. But, REALLY, on a scale from 0-10 where:

  • 0 = Completely Irrelevant
  • 10 = Life or Death

How IMPORTANT is it to have a cake at the party? For your husband, yeah it might be a solid 10. But for everyone else? Probably in the 1-2 range. We know they will be happy to be sipping coffee and eating the ice cream or whatever else you have for them. The point: It feels super urgent so it gets done. No question about it.

Now, it’s tough to draw a direct comparison… But on the same scale (0-10), how IMPORTANT is it to have a Power of Attorney? Probably in the 7-9 range? Clearly way more IMPORTANT than having a cake at your 2 year old’s birthday party.

Problem: It doesn’t feel urgent. So 60% of us do nothing, even though it would take about as much time and effort as going to pick up a cake from the grocery store. That 60% of us remains in limbo until some crazy life event smacks us in the face that makes it feel SUPER urgent: A parent, family member, friend, etc. goes through a nightmare situation. Such is life.

Please. Spare yourself the theatrics, strap on your big-boy pants, and generate your own sense of urgency. Don’t wait for life to do it for you.

Thanks to all for the continued support! If you have questions, comments, or topic suggestions for us, please direct those to: marketing@epiphanylaw.com