End-of-Life Planning: Supporting Customers Through Challenges
Below, senior attorney Nikki Mitchell describes some of the challenges of estate planning and how she helps her clients through them.
How do you prepare to support your clients through difficult legal processes, such as end-of-life planning?
In my experience, the best preparation is twofold. First, you must have a good understanding of the law and the options your clients can and should consider. If you don’t deeply understand this, you cannot properly advise your client. You may have the superficial answer to the question, but you can’t help your client dive into those deep conversations that so many areas of elder law practice require. Clients look to you for legal advice, but also for resources, opinions, first-hand experiences, contacts, all of that. They need you to be the expert so they can feel secure in the decisions they make, knowing they had accurate information to do so.
Second, I try to make sure that I break down the content of any practice area in which I assist clients into manageable pieces. Clients who come to see me are often in a very emotional and stressful period of life. They deal with sick or deceased family members; they sometimes think for the very first time about what they want at the end of their life. I have families who have diligently cared for disabled family members throughout their lives and are now trying to figure out who will do it for them when they die. They’re usually not in a place where they have the bandwidth to decipher a ton of legal information. If I can’t take the information and advice I give them and make it easier to digest, I’m doing my clients a disservice and only adding to their stress.
What complications might arise during the estate planning process? How can we avoid them?
There are a myriad of complications that could arise during the estate planning process. Things like family dynamics, conflict, and mistrust tend to come up during the conversations we need to have to come up with an appropriate estate plan. I could fill a storybook about estate planning gone wrong. The thing to remember, though, is that all of these things that have the potential to make the estate planning process a little painful will be exacerbated if you do nothing. At least if we can put together an estate plan, there’s something to fall back on when things go wrong.
Clients who come to see me are often in a very emotional and stressful period of life.
We can avoid or mitigate these complications by being open and having difficult conversations. It is best for clients to come to me after having had prior conversations or thoughts about what they would like to see in their estate plan. It is important to spend time with clients by asking open-ended questions about their lives and families. The information you glean from these kinds of conversations reveals much more than what you’ll find on a simple questionnaire. Clients should be honest with their attorney about their wishes and concerns. Don’t be shy to talk to your lawyer about family dynamics that could be causing conflict.
How is a trust different from a will? What are the main advantages of each?
It’s something customers ask for all the time. There is a pervasive belief among the general public that if you have a will, you are set and have nothing else to do. It’s not true. A will only has the force of law if it has been approved for probate. So, the biggest difference, from a client’s perspective, is that a will requires probate, while a trust does not. All respective pros and cons of this apply. Sure, that’s a simplification, but it’s probably the most important thing for my clients. Some other big differences are that a trust has terms that can apply during the settlor’s lifetime as well as after death, whereas a will only has terms that apply after death (and, again once, after being admitted for probate).
For a client with a relatively simple estate plan, a will is a good safety net document. You can accomplish so much of what a client wants by using named beneficiaries and other non-probationary strategies that a will only serves to capture things that might slip through the net. This helps reduce the costs of creating your estate plan and achieves the goal of bringing your remaining assets where you want them after your death. If you end up requiring probate, the will ensures that you have someone named to oversee your estate and requires that person to distribute your assets according to your stated wishes.
There is a pervasive belief among the general public that if you have a will, you are set and have nothing else to do. It’s not true.
A trust – most often a revocable trust – is suitable for people with more complex estates. This may be due to the value or nature of their assets, family considerations, or any number of factors that make a trust the most appropriate document for clients. A revocable trust has the advantage of being easily changeable (in most cases), being flexible, and allowing you to accommodate a plethora of potential scenarios in the terms of the trust. A trust does not negate the need for a will to capture things that might still slip through the cracks of your estate plan, but the will is not the main driver of your estate plan in this case; trust is.
A good estate planning attorney will work with a client to determine which combination of documents is most appropriate for their client.
I would be remiss if I did not take the time to stress the importance of enduring powers of attorney. In my opinion, these may be the most important documents a client creates. Without them, if a client loses abilities over their lifetime – which is becoming increasingly common as people live longer with conditions that affect cognitive ability – then we see the number of guardianships and guardianships adults increase. Having enduring powers of attorney for finances and health care will, in most cases, obviate the need for guardianship or guardianship. They are powerful documents, however, and are one of those things you need to be prepared to have tough conversations about and shouldn’t just be a one-size-fits-all type of document.
What are the most difficult cases you work on? What are the most rewarding?
The most difficult cases are always those with difficult family situations. It can be families who are struggling or families who are going through very difficult circumstances. They can both be difficult to navigate and separate from the emotional part of the deal. However, solving these problems can also be one of the most rewarding cases, since they were so difficult. My area of practice, for me, is very rewarding overall. I have the privilege of working with clients through stressful and emotional times. When I’m able to lighten even a little bit of their load, I feel like I’ve used my degree exactly as I hoped when I chose law as my career path.
Nikki Mitchell, Partner
Mitchell, Brown & Associates LLC
473 N. Kirkwood Road. 2nd Floor, St. Louis, MO 63122, USA
Tel: +1 314-962-0186
Fax: +1 314-962-1298
Email: [email protected]
Nikki Mitchell is the owner and managing partner of Mitchell, Brown & Associates. His practice covers all aspects of elder law. Prior to joining the firm, Nikki worked as a legal aid attorney and gained experience in a wide range of legal matters including elder law, disability, special education, SSI claims, family law and disability. During and after law school, she also served as editor and then editor-in-chief of the Mid-Atlantic Journal on Law and Public Policy, a journal that focused on the intersection of animal health and animal law and ethics. .
Mitchell, Brown & Associates, LLC is a seniors and special needs law firm serving clients in St Louis and surrounding areas. His team advises clients on both legal matters and the many non-legal issues that may arise in their lawsuit, whether related to finance, health or long-term care.