Ideas. Lessons Learned, and Occasionally, Opinions
When a client or colleague receives serious diagnosis or needs to undergo surgery, chemotherapy, or other treatments, people often rally around with support. They offer to bring food, provide rides to doctor’s appointments, watch the kids, etc. While grateful for all the offers, most people are still overwhelmed by trying to keep their network informed of medical progress, juggling responsibilities at work, and coordinating the needed help, all in the midst of the intense emotional and physical drain of the situation.
You can help alleviate that stress. There are several ways you can provide support that is different than what most people do. For example,
Spare your client or colleague the legwork by providing resources like these. Depending on your relationship, you may even wish to participate in offering practical help to the family. Regardless, let them know you care by providing concrete assistance at a tough time
When we talk about medical decision-making, especially in the later stages of life, there is a huge disconnect in our society between attitudes and implementation.
In fact, according to the American Journal of Preventive Medicine, only 26% of Americans have living wills or advance directives, even though 86% says it’s important to have their wishes written down.
As a financial professional who cares about your clients’ lives and the impact of healthcare on their finances, make it a part of your practice to recommend advance directives for every client, and offer the following basic information as a guide.
In broad terms, an advance directive is any document that allows a person to state “in advance” how they wish to be treated if they are unable to make those choices themselves. The most common advance directive is a living will. Contrary to what many people think, living wills do not have to limit treatment or “pull the plug”; they can also be used to request every medical intervention available. It is up to your clients to state what they wish.
Also, if someone is conscious, capable of making decisions, and able to sign permission forms, there is no need to consult the living will. Living wills only take effect when a patient is unconscious, demented, in the recovery room after surgery, highly medicated, or otherwise incapable of making their own decisions.
Rather than a cursory document with a couple of boxes checked off, the living will ideally is the clearest description possible of that person’s desires. Clients often list their wishes based on various situations, as they may want different treatments when imminently dying of cancer than when in a coma from which recovery is likely. Because perspectives change with age and state of health, these documents should be revisited at least once a year.
The advantages of living wills:
Common problems of living wills:
Just because there are a number of valid concerns about living wills doesn't mean that financial advisers should discourage their clients from creating the documents. Instead strongly encourage clients to write their desires as clearly and specifically as possible.
Some of these concerns are addressed by another form of living will. Consider giving your clients a form called The Five Wishes. It is available at www.agingwithdignity.org for $5 per copy, or $1 per copy when purchased in quantities of 25. It’s a very inexpensive way to provide real value to clients and their families.
The form includes everything found in a standard living will from the states. It also includes one legally binding part: The appointment of power of attorney for healthcare. Additional directives include comfort measures a person desires in their room (music, lighting, blankets, religious items), messages to leave with loved ones, and wishes for services. It is a more comprehensive form than the states provide, and almost all states accept it in lieu of their standard form. The only exceptions are AL, IN, KS, NH, OR, OH, UT, and TX, which accept it as long as it is attached to that state’s standard form.
In other words, The Five Wishes is a more complete form that addresses several concerns rather than only one, and it is accepted in every state (given the minor restriction in the eight states named.) If you are working with estate planning attorneys in your COI network, inform them of The Five Wishes and of your desire to have all of your clients use that form. Then there is less chance of discrepancies and overlap between your work and theirs. Like all forms of this nature, the latest one that is signed, notarized, and dated supersedes all previous copies, so it is not a problem to complete the more comprehensive form even for clients who completed the state’s standard form already.
Regardless of what form clients choose, schedule a follow-up to ensure they actually do complete a living will/Five Wishes, and that it is properly signed and notarized. Encourage them to distribute copies to their family members and to any person or institution involved in their care, including primary doctors, specialists, nursing home, hospice, rehab center, and hospitals. Offer to keep a copy in the client’s files at your office, in case a family member needs one and cannot locate it.
When you educate your clients and prompt them to complete a living will, you ease their fears that someone else will dictate their medical decisions. You keep them in greater control and take a burden off their family members. The resulting peace of mind is invaluable to your clients and consequently good for your business.
When your client dies, who owns the pictures on their Facebook page? Who has control of their electronic bill-payment sites or Bitcoin account? Who is responsible for shutting down or memorializing social media sites? Digital rights ownership is an increasingly complex issue as our online lives continue to expand. Are your clients prepared to safeguard these assets after they die?
If your client does nothing in advance, disposition of digital assets goes according to the TOS (terms of service) of each individual site, which vary widely. In fact, many survivors have been shocked by sites that do not allow transfer of ownership or access upon death, or that complicate the settlement of the estate. Rules have been more flexible for minors in states that allow parents or guardians to manage deceased children’s accounts. Yet some families have had to get court orders to obtain rights to their loved one’s digital accounts, a process that can take months or years.
The Fiduciary Access to Digital Assets Act
Several states began to take action by passing a Fiduciary Access to Digital Assets Act. This gave the executor access to all digital accounts and allowed digital assets to pass according to the decedent’s will. However, it ran into legal trouble based on privacy. Some people, for instance, did not want their executor to see highly personal information such as their history of emails and texts, and lawsuits ensued.
The acts were gradually amended to resolve these issues until finally, in 2017, states began passing the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). (http://www.uniformlaws.org/Act.aspx?title=Fiduciary%20Access%20to%20Digital%20Assets%20Act,%20Revised%20(2015). Forty states have now made it law, and it’s pending in five more plus Washington D.C. It will soon be nationwide. What does this mean for financial advisors and estate planners? Digital property now needs to be part of the estate planning process, and you need to help your clients prepare now for their digital afterlife.
Access to Digital Assets
RUFADAA allows the executor or another fiduciary appointed in the will to have access to any electronic or digital sites “necessary” to settle the estate. The necessary sites are largely those involving finances or financial assets, including shopping accounts, automatic bill-paying, online banking, etc. That very narrow provision protects privacy, as it does not allow the executor to access texts, emails, and more private information.
Yet RUFADAA allows for further permissions if the decedent clearly states so in the will. These permissions can cover desires such as whether a Facebook page is closed or maintained as a memorial page, whether a blog is deleted or archived and kept, and all your client’s other desires for digital sites.
Sites that fall under RUFADAA are required to give access to the named fiduciary or executor, but that process can take time and involves proving to the site that the client died. If usernames and passwords are accessible immediately, airline miles can be transferred, sites can be closed, and other desired actions can happen with less complication. It is important to note, though, that clients should never include usernames and passwords in the will, as it becomes a public document upon death.
Your Two-Step Process
There are two crucial steps to take with your clients:
1. Ensure the will includes your client’s intent for the executor or another named fiduciary to have access to digital accounts, how broad those permissions are, and your client’s wishes for disposition. Example: Can the named person see all the tweets, emails, and private personal information, or does access only extend to closing such accounts? What are your client’s desires for each site or each category of sites?
2. Ensure that your client completes another document giving more specific instructions (i.e. to whom they wish to transfer their airline miles and hotel points), and including usernames and passwords. This document should be signed, dated, and preferably notarized, and kept with the will so instructions are accessible to the executor.
To facilitate this, recommend that clients use one of the available services (i.e. LassPass.com) that generate secure passwords for every site and store the entire array of information necessary for access. The document then only needs to include the master password to that service, plus instructions for any two-factor authentication, so the named fiduciary can easily open the entire vault of usernames and passwords. Since the password storage service is dynamic, it also allows clients to maintain security by changing passwords regularly, without having to re-do the document.
Instead of allowing individual sites to determine disposition, take these steps to keep your clients in control and remove at least some post-death headaches. They will never forget it!
A salesperson called me a few days ago. He was so convinced of the value of his product that after our initial pleasantries, he praised its attributes for several minutes. I asked one question and he talked on for several more minutes. His mistake was that he didn’t stop talking long enough to find out why I might need his product or how it could best serve me. He lost the deal because he knew how to talk about what he was selling but he didn’t know how to listen to me.
How does this relate to serving clients experiencing loss or transition? Like the worst salespeople, the least supportive advisors are those that don’t know how to ask good questions and listen.
There is often a chorus of objections at this point. Usually they sound like these:
Sound familiar? Let’s look closer.
First of all, consider the flip side. What are the consequences of refusing to ask questions? If you carefully avoid the topic and do not bring your client’s grief into the room, there is a big white elephant sitting on the table between you. You both know it’s there but you are trying to ignore it, look over it, slide it to the side, or otherwise pretend it’s not there. It adds a level of tension as you participate in the game of mutual deception.
This feels very familiar to grieving clients, because they encounter it everywhere. Most people, from family to casual acquaintances, don’t know what to say so they say nothing at all. They talk about anything and everything except the person who died. They try to cheer grievers up, hoping to make them feel better. The bereaved people, not wanting to make others uncomfortable, go along with it, but it feels inauthentic and they walk away alone, isolated, and unsupported. Is that how you want your clients to leave your office?
The minute you acknowledge the truth, the big white elephant disappears. For instance, you can ask something simple such as: “What do you wish people knew about what it’s like for you now, a month after Paul died?” or “What has surprised you about the experience of going through Paul’s death?” When you ask an invitational, open-ended question like these, the big white elephant disappears and the tension evaporates. They know you care enough to ask, whether or not they choose to accept your invitation and talk about it. They know you aren’t avoiding the topic or hiding behind your spreadsheets.
Additionally, if they do choose to tell the story and you listen with care, you offer them support they aren’t getting from others. You genuinely help and comfort them, and at the same time you distinguish yourself in the field. You build a level of trust and loyalty you can’t get anywhere else. It’s good for your clients, and it just happens to also be good for business.
The bottom line: You have a lot to lose if you don’t ask; you have nothing to lose if you do.
Continue this pattern, always asking questions based on what the client is saying. You will notice the pitch of the voice lowering, longer pauses and slowed breathing as the anger gets spent and the client calms. Only then can you begin talking about what you can do together as you go forward. Ask what steps the client would like to take. Make appropriate suggestions for portfolio review, redistribution of assets, or simply keeping in contact every week or two.
At the end of the conversation, make sure you thank clients for being honest with you. Tell them your door is always open, and you will listen even when it is hard. Reassure them that although times are really tough right now, you can weather the storm together and come out on the other side.
If you can master these skills, your clients will come out of even angry conversations feeling heard, supported, and most of all, loyal to you.
Picture this scenario, which gets repeated all too frequently:
A young man goes to college. Two months later he is rushed to the hospital and into the operating room for an emergency appendectomy. His mother calls the hospital in a panic and asks to know what is happening with her son. The hospital says, “I’m sorry; I cannot give you that information.” She says “But I’m his mother!” The response: “That doesn’t matter. For all of our adult patients, we can only give information to those authorized to receive it, and you are not authorized.”
You’ve educated your clients on the need for a Power of Attorney for Healthcare (aka healthcare proxy) for themselves, listing who can make their medical treatment decisions if they are unconscious or incapable of making those decisions. Clients may also be aware that HIPAA forms, which they regularly fill out at the doctor’s office when they have appointments, detail who can have access to their medical records.
What most clients don’t realize is that their kids need to have these documents in place as soon as they turn 18. Then they are legal adults, and no one gets access to their medical records or treatment information without express permission.
To avoid nightmare scenarios, take the following steps:
If the aforementioned young man had these documents in place, his panicked mother would have been given full access to his medical records and the details of his situation. She would also have had the right to make treatment decisions on his behalf while he was unconscious and unable to make them himself.
Especially given the state of our healthcare system, your clients and their family members need to take control of assuring who has access to medical information and the right to make treatment decisions. Addressing these areas with your clients helps you protect them and also extends your reach into the next generation. Any client who encounters such a situation will be forever grateful for your wise and prescient guidance.
If you find yourself at a loss for words, you are not alone. There has never been a financial advisor’s guide that explains what to say (or what not to say) and how to handle these potentially challenging and professionally awkward situations. When I became a 25-year-old widow with a 7-month-old baby boy, believe me, no one knew the right thing to do or say around me, including the financial professionals I needed to rely on. And I’ve heard the same stories countless times since then, from more than 2000 grieving people. Instead, what most professionals do is either ignore the painful reality and stick to business, or pick up what other people say and inadvertently perpetuate the mistakes.
You can do better than that. You can learn to do the right things and offer genuine comfort and support, no matter what your clients go through.
However, as I continue to get feedback from research and in my support groups, I find that many grieving people don’t appreciate it. They especially resent it when, as sometimes happens, the words are dripping with drama – “I can’t IMAGINE what this is like for you!” Yet even if you take care not to go over the top when you say it, you risk isolating people. They hear your implication that they are so crazy or outside the realm of normalcy that no one else can even imagine what it’s like. And since no one can imagine it, no one can be there and help. It builds a moat around your grieving client that can’t be crossed.
Besides, it ultimately is not true. We have very active emotional imaginations. Most of us can indeed imagine something of the pain and loss, the empty chair, the unanswered phone. In fact, imagining it is one key to building empathy, which is core to who we are as human beings and serves a crucial function in binding us together in mutually helpful ways.
So if you aren’t supposed to say “I know how you feel” or “I can’t imagine what you’re going through”, what do you say instead? Consider asking one of the following questions, modified for the situation if necessary:
Never assume you know what someone else is experiencing. Instead, ask open-ended questions and allow a grieving client to tell you, and then let your imagination take you as close as possible. That allows you to respond more effectively and serve your clients in ways others don’t know how to do.
When you know how to walk your clients through the toughest times of life, you build trust, loyalty, and referrals.