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Law Offices of Ronald W. Rutz
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October 5, 1999: Unsolicited Legal Questions

Q: I talked to an attorney at a party and she sent me a bill! Talk about the nerve!

A: The ubiquitous unsolicited legal questions, especially at social functions, are the bane of most lawyers' existence. To paraphrase what Lincoln once said, the only things that an attorney has to sell are time and expertise. But the attorney should have made it clear that since you were asking legal advice, you would be billed, even if you were not at her office. Ask yourself, however, whether you benefited. If yes, then why shouldn't you pay?

But you should understand the very vulnerable position of the attorney because you not only asked but pressed for an answer. Whereas a nonlawyer, who fancies himself or herself as the reincarnated Oliver Wendell Holmes, has no liability for legal advice if it turns out to be wrong, anytime a lawyer gives advice (whether paid or gratuitous), the attorney is liable if the offered advice is defective.

A lawyer can not be an expert on all topics of the law. But from a lawyer's perspective, often these so-called off the record questions seem to be pushed by individuals who must have an answer, and if the advice is wrong, surveys by legal organizations suggest that the "clients" to not hesitate to go after the attorney. Yet, the attorney wants to be "a good guy or gal" and bow to the social pressure of the moment. Next time just make an appointment.

Q: I bought several rental properties with a friend but problems have developed. The units need to be repaired and upgraded after several years of use. One house may not meet code and I am suspicious about "activities" in another. My partner refuses to spend any money or join in any court actions. He says to chill out, "get over it," and that I am stuck. I don't want to have my equity shrink, nor do I want to lose part or all of my investment if we are sued, or if criminal activity is in fact present and the property is confiscated.

A: You are not a "stuckee" and if your partner refuses to cooperate, then your ultimate recourse is to start a partition suit (asking a judge to divide the investments between the two of you). If the Court feels that the properties can not be fairly divided by just retitling, then one or more units could be ordered sold and the net sale proceeds divided.

Unfortunately, the downside of this course of action is that the cost of the court proceedings, plus the possibility of a sale at below fair market value if the property is sold too quickly, could impact your equity. But it might well be worth it based upon the other financial risks that you are facing.

Q: What is a durable power of attorney?

A: It is a variation of a general or common-law power of attorney. In general and in the absence of termination conditions that are inserted in the document, a general power of attorney would end if someone died, revoked it, or became incapacitated. But since an incapacitated person is in no position to take care of his or her affairs, incapacity is normally just the time when someone needs the assistance of an agent using a power. Thus, a durable power of attorney will end if someone dies or revokes it, but it survives incapacity. Hence the name "durable." Also, a power can be durable even if that word does not appear, as long as there is language inside the document stating that incapacity does not revoke it.

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