Contemporary Trends in Estate Planning – Plans that Work

September 19, 2016

Authored by: Stephen R. Elville, J.D., LL.M.steve@209.59.156.181, 443-393-7696

There is a subtle but unmistakable trend in estate planning and elder law in 2016.  Not surprisingly, this trend is being driven not by the legal community, but by market forces – estate planning and elder law clients.  The trend is this:  clients are increasingly demanding to be cared for – they are seeking and demanding attorney-client relationships where formal client maintenance and updating programs are offered – they are asking attorneys to stop engaging in the long-time practice of limiting the scope of their representation to such an extent that individuals and families are left with plans that are likely not to work over the long term due to many factors, including no commitment on the part of attorneys and law firms to a caring for clients model, and where there is no continuing relationship with the attorney or law firm.

This trend, like all value-based concepts, has its origins in foundational principles.  Would a sane person knowingly engage in the estate planning process – enter into a relationship with a law firm, share their most personal information, invest time, effort, and money, and make plans for the future based on the planning, if they knew that the plan was likely not going to work as intended and contemplated during the planning process?  Of course not.  Yet, this is what happens in estate planning and elder law each and every day.  The answer:  client maintenance and updating (client care).

To understand client care in estate planning, elder law, and special needs planning is to understand how planning actually works – or more exactly, how it doesn’t work.  In this brief article, we will explore the fundamentals of client care, the mechanics of how it works from plan inception and throughout the following years, and how it ultimately accomplishes its inherent goal of ensuring that planning works as intended, with the added benefit of cost minimization in final administration as a likely natural by-product.

Understanding client care is simple – it is treating the estate and elder law planning experience as more than a one-step process, and understanding that planning is not just a set of physical documents, but a lifetime of maintaining and updating those documents on a recurring, predictable basis, with the expectation that through follow-up and on-going counseling in a partnership-type relationship between attorney and client, in coordination with the client’s financial advisor, CPA, and other advisors, all aspects of planning are addressed, including the alignment of assets in harmony with the planning structure.  Traditionally, estate planning has been limited to one step – the design and implementation phase.  It is at this point where most failures in estate planning occur – that’s right, this is where failure happens practically from the very beginning, and as mentioned above, the point where if most clients realized their plans were subject to failure from inception they would likely choose to not plan at all.  This is where plan failure begins because clients are traditionally counseled that the set of documents they obtain is the estate plan.  Nothing could be further from the truth, and proof of this is best summarized in the following statement:  in estate planning, ultimately the only thing that really matters is the answer to this question – how were the assets titled and what were the beneficiary designations at the time of death?  The estate planning documents are ancillary and of secondary importance – they are merely tools by which to control the flow of assets and/or direct them.  Without proper titling, designation, and assignment (asset alignment), documents in and of themselves are potentially useless.

Rather than limiting oneself to a one-dimensional process (the design and implementation phase only), estate and elder law planning is a three-step process, inclusive of the following:  (1) design and implementation; (2) maintenance and updating (the client care process); and (3) success in final administration.  Although many analogies are applicable, perhaps the garden analogy best illustrates the truth of the planning process.  To have a successful garden, one must till the soil and carefully prepare the ground for planting, carefully designing the rows or patches, determining what yield is expected and what aesthetic look is desired, and thereafter the seeds are planted.  Then rain comes, and sometimes the wind blows; or at other times the rain does not come and measures must be taken to provide needed water to the plants; but then animals or insects may come and eat the plants or vegetables, frustrating your efforts.  And all during the growing season you must maintain the integrity of the garden by weeding, tending to the plants, placing stakes where necessary, spraying, and otherwise monitoring things on a consistent basis.  After considerable attention in time and effort, assuming the soil is good, the garden yields an abundance of tomatoes, corn, egg plant, yams, beans, squash, broccoli, watermelon, or whatever other plants were cultivated, usually in relation to the amount of planning and care expended in anticipation of a successful harvest.  Estate and elder law planning is the same – in our ever-changing and fast-paced world, one of the only things that is certain is we must recognize and adapt to change – we must implement planning with the understanding that it is not static, but constantly evolving.  Along these lines, the only way to assure the success of your planning, and ultimately the success of your beneficiaries through planning, is to focus on the following:  make sure your voice is heard – engage in planning only with an attorney/law firm that cares enough about you, your family, and the success of your planning to offer a formal client maintenance and updating (client care) program, and that has as its core mission, vision, and philosophy the education of clients and their families, and a commitment to a caring for clients model.