Five Ways to Avoid Failure of Your Client’s Estate Planning Documents.

Plant the seeds for success. . . .

After 20 years of preparing client documents for their life and death planning needs, I assure you that the effectiveness of those documents often has nothing to do with your drafting skills. The real acid test is whether, when called upon to do the task intended, do they perform as anticipated. What follows are five ways to insure that they will fail unless you take the necessary steps to counteract each of these outcomes.

First – The documents you draft for your client get left in a drawer unused.

This happens benignly as you counsel your client and explain the documents in great detail. Your client wishes to appear intelligent and nods as you ask the client if she understands each of the concepts that you took the time to explain. The truth is that she has only a foggy idea of what each document can do and how it operates. All the time you spent explaining each document is packed away in the folder that you gave her with each document neatly tabbed and organized in a beautiful leather bound binder. She goes home, puts it in a drawer and never shares it with her children or others. When the time comes for medical decision-making in emergency circumstances, the well meaning family members waltz into court and seek control by way of a guardianship unaware that a medical directive gave that authority with clear instructions in the binder you provided.

Solution: test the client. Ask her to describe the document and what it does until you are satisfied that she understands the essence of each document. Plan to set aside the time it will take to do so. Draw pictures or use other illustrations to help the client see the big picture without the legalese and without detailed exploration of the sections which the agent may use to administer the documents.  Tell her that you understand that this is complicated and you expect her to struggle with many of these concepts. Give her permission not to understand everything you discuss and encourage questions to resolve any ambiguity.

Second – The documents presented are not given force and effect by others.

This is often the result of a lack of understanding by the client’s agent when presenting documents granting authority to act on behalf of the client. Or it can occur when you put unreasonable barriers to their use by drafting documents with pre-conditions for their effectiveness.  Draft documents which not contain pre-conditions such a springing powers of attorney. Those pre-conditions are often the result of the client’s lack of trust in the agent – particularly when executing a financial power of attorney. If the client insists on pre-conditions, then you may want to investigate further whether that agent is trustworthy. If no one is available that the client trusts with the keys to her vault, then don’t do one. Those pre-conditions often result in banks or other financial institutions rejecting them because of uncertainty that the conditions have been satisfied. Besides, do you want to wait until you are incompetent to test the trustworthiness of the agent?

Third – The documents you prepared are not understood by the agents.

See “First” above, ditto for the agents. Do you bring the agents in to explain each of the documents to them? Usually, this is a good idea. Sometimes, however, you find that the agent wants the documents rewritten because they don’t agree with the client’s objectives or directives. Keep in mind who the client is as you engage the agent and query the client regarding the possible outcome of bringing the agent into the office for that explanation. Often, when asked, the client will tell you that the agent will push back or try to take unreasonable control if they are allowed to participate. Perfect! Now you know that, perhaps, this was the wrong person to name as their agent! Redo may be in order.

Fourth – The documents you prepared have the wrong agents.

See “Third” above. This requires careful examination of the choices that the client makes when selecting agents in the first place. Don’t accept “I want to choose then based upon their birth order” or the, “I want to be fair to my kids”, argument when making their selections. Help them choose agents that are appropriate for the task. Financial decision making – honesty. Medical directive – who full appreciates how you would make medical decisions and can carry them out? Will/Trust – who can maintain some sense of harmony and yet be a task-master to get the detailed work accomplished in an efficient manner?

Fifth – The documents you prepared are out of date.

Keep current with the law and the changes that occur and encourage your clients to return to you at least semi-annually to get their documents up to date with changes in legislation, changes in their family status, and finally accessions or depletions of their assets. Every year, we have significant changes in the law or the way it will affect our clients yet many of them wait 5 or 10 years to update their documents. Largely this is because they want to avoid the expense and time to complete those updates. They don’t realize that if they are keeping them up to date, the cost is nominal to change them when working with the attorney who drafted them in the first place. If you don’t have a maintenance program in place in your firm, you and your clients are missing a valuable opportunity to stay up to date and facilitate effective execution of those documents later.  

Take the time and the necessary steps to counsel your clients on the effective use of their documents and help them avoid the very problems they came to you to prevent. The cure is time and attention where it is needed. They can go online to prepare their own documents, but none of the issues identified above will be addressed with their DIY documents. Help them understand the value is not in the paper, it is in the counseling that you provide that cannot be accomplished online.

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