Ideas. Lessons Learned, and Occasionally, Opinions
Imagine a scenario: In the course of a regularly scheduled meeting, you notice that your normally astute and proper client has grown visibly thinner and isn’t dressed to the usual standard. You also observe disturbing memory lapses and mental mistakes, including trouble understanding the concepts you explain.
You express concern, ask the client about it, and encourage him or her to make an appointment for evaluation or medical assistance, but then what? Can you call a family member? How do you avoid violating privacy and confidentiality while still taking action you believe is in your client’s best interest?
There is a simple but highly effective way to resolve this dilemma that goes one step farther than the usual emergency contact forms that are standard issue in business: Ensure that each of your clients signs a Diminishing Capacity LetterTM. A simple template is as follows:
“I, [name], give [your name(s); company name; location] permission to call the following people in case of illness, emergency, or if they suspect any diminishment in my physical, cognitive, mental, or psychological capacity.”
The form then has space to list at least three people, with their name, address, relationship to the client, and contact information. Your client signs it, preferably in the presence of a notary public, who dates and notarizes the document. Every year, you revisit the form to see whether names or items of contact information need updating.
Once the Diminishing Capacity Letter is in place, you no longer need to worry about violating privacy or confidentiality. The client has explicitly given you permission to call specific people, not just for emergencies or medical illness, but also if you are concerned about their cognitive or mental state.
Making the Call
When you call, remember not to make a diagnosis, i.e. “I think your mom might be heading toward dementia.” While it is typical to think diminished capacity is related to aging or dementia, remember that there are other reasons for cognitive difficulty that have nothing to do with dementia, such as interactions of medications, infections, a vitamin B12 deficiency, emotional trauma or grief, and more. Regardless of the cause, it is always important to first talk to your client and then to follow up with their contacts if the client does not respond promptly and appropriately.
So rather than suggest a cause, simply list what you see. “I am calling to let you know that I have observed some disturbing signs when I am in contact with your mom. She asked the same question three times in 25 minutes, even though I’d answered it each time, and had trouble following a conversation that normally would be no problem. She also had to think for several minutes before she remembered her grandson’s name. I want you to be aware of what I’m seeing in case you or other family members observe similar things, and you may wish to get her to a doctor for evaluation of the cause.”
Be sure to document your observations and the phone call itself as evidence that you are doing everything you can to protect your client in all aspects of life. Be a wise guide for your clients in all the situations they may encounter.
Life is fragile. We truly never know how long we will have on this earth. It is not true that my parents will surely die before me. It is not true that my children will not die before I do. It is not true that good and deserving people will live long lives. It is not true that “til death do us part” means we have unlimited time. Death always comes too soon. It is not logical, and it is never fair when it is someone you love.
Once I comprehend this reality, I have to choose how to respond. I can become a cynical complainer - Life is not fair, it’s too cold outside, the sun doesn’t shine enough (or the sun glares off the snow when it does shine), nobody appreciates what I do, etc. I can become withdrawn and unwilling to invest in life or relationships – after all, everyone I love is going to die anyway so I may as well save myself the hurt by not loving in the first place.
Or I can respond with unconditional investment in life and love. I know that when I do so, I risk everything. There is no love without hurt, no attachment without loss, no life without death, no summer without winter. But the alternative is to die myself. What do I choose?
Bard Lindeman was a nationally syndicated newspaper columnist for years. After his wife died, he wrote the following in his column:
“As a 41-year-old widower, father to three motherless children, I surely knew loneliness and rampant confusion. However, when someone suggested joining a support group, I balked…I was stupid, mistakenly believing in macho self-reliance, for the way back leads through the community, the world around you.
When you’re ready, you need to get up, get out, and get going. Get with people. Find a hobby, take a class at a community college, become a library regular, learn something new, adopt a pet, find a gym and get regular exercise, volunteer to deliver Meals on Wheels, escort a young relative to a baseball game, write letters, plant a tree, subscribe to a newspaper (be informed; your conversation will improve), join a choir, feed the birds, rejoin your veterans association…
You get the idea: Construct an action plan that fits your ‘new life’ and stop trying to reclaim the past. Invent a future.”
It is hard to get the energy and motivation to change your life. It takes time to get comfortable being alone without always being lonely. It takes a certain amount of healing before you can envision a future different than what you had planned before. But those are exactly the things that lead to renewal, happiness, and a life well lived.
Today, decide one thing you can do to invest in a new future. You don’t know how long your life will be;
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.
The holiday season is laced with minefields for grieving people, especially if they are facing the first holiday season without loved one. Homes get decorated with sentimental ornaments, candles, and trimmings. Songs carry unbidden emotions. There are countless gatherings of friends and family where the empty chair is all too evident. And because expectations for joy and cheer are so high, these mourners often feel lost, alone, and sad. Your employees, clients, and associates will never forget it if you reach out compassionately during this time, letting them know you understand how hard it is.
Remember not to write cards and notes wishing a “Happy” or “Merry” holiday. Instead, choose texts that wish peace or hope. Then include a hand-written message acknowledging their reality. Here is one possibility: “Wishing you Happy Holidays at a time like this seems hollow. Instead, I wish you peace. I wish you healing. I wish you hope.”
Or: “During this holiday time, I wish you moments of lightness in the midst of the pain. I wish you companionship of beloved people in the midst of the loneliness. I wish you healing as you learn to survive these days. Most of all, I wish you peace.”
Or: “You may find that few people understand what you experience during this holiday season. Try to be patient with yourself and others, as you find your way through the ups and downs it will surely bring. In the meantime, do what seems right to you and take care of yourself. Concentrate on what is most important, and know that I am here for you.”
You may also wish to give or recommend these helpful books:
You may wish to give one or both books to your grieving employees, clients, or associates. These books are small, easy to navigate, cost less than $15 each. With the different formats, the recipients and everyone in their families will be able to find understanding, consolation, and practical help in these pages.
Mid-winter can be a difficult time no matter your life circumstances. The weather is colder, days are darker, and it can seem like life retreats for a while. This is especially true when you enter a new year without a beloved person who died. How do you cope?
Here are ten tips for finding comfort in 2017.
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!
National Healthcare Decisions Day kicks off on April 16th with a week of planned events to “inspire, educate and empower the public and providers about the importance of advance care planning.”
As a financial professional, you may find clients turning to you for information, especially as they approach retirement or, more likely, when they face issues with aging parents. In order to guide them wisely, it is essential that you are educated on advance directive documents.
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 always limit treatment or “pull the plug”; they can also be used to request every medical intervention available.
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, or otherwise incapable of making their own decisions.
The living will should be the clearest description possible of the 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.
The advantages of living wills:
Common problems of living wills:
But 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:
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. You help them have valuable discussions with those they love. The resulting peace of mind is invaluable to your clients and consequently good for your business.