This post is a continuation of an earlier post about fear-based tactics that are sometimes used to “help motivate” people to plan their estate. This type of fear based motivation does not appear to help people think clearly about their values and priorities, but rather the fear is designed to sell. Check out this recent Denver Post article that has helpful information and also instructs people to “walk away from high-pressure tactics.” One definition I found of “advertising” goes along these lines:
the nonpersonal communication of information usually paid for and usually persuasive in nature about products. Another definition talks about “driving behavior” and this post will focus on those two aspects in the estate planning context.
In an earlier post I introduced the first two Myths of fear-based estate planning as follows:
Myth #1: You Need to Avoid Probate (as in probating a will) at All Costs and
Myth #2: Getting a Trust Will Protect Your Assets from Nursing Home Costs and Medicaid Recovery
Let’s take a look now at two more myths of fear-based estate planning.
Myth #3: A Living Trust is the Answer to All Your “Problems”
This is where the pitch might be at its most shrill. Once I got a call from someone who actually hung up on me when I told her that sometimes probate wasn’t a bad thing. . . . ! In my practice, I have seen the dark side of several trusts. There are many trusts that are generic and not tailored to an individual’s situation in any meaningful way, and because they are so long and complicated, clients don’t have a decent understanding of how the trust works. The trust may create a completely unworkable management scenario, like when the adult children appointed as trustees can’t get along. Another important factor to consider in this regard is that the trust document doesn’t usually accomplish anything on its own. It merely creates the trust. Often this important detail is not adequately explained to the client or it is completely neglected. It requires the re-titling of a person’s assets into the trust’s name. I have opened probates in such situations, where a probate asset was not, much to the surprise of the trustee and an heir, titled in the trust’s name but rather remained in the decedent’s name. Trusts must be established properly as well as maintained. Some are rather high maintenance. If someone is telling you about how much an “average” probate costs – be sure to draw a distinction between the costs of probate and the costs of a probate lawyer. Many times the trusts that are being sold are much more expensive than the probate alternative!
Myth #4: Selling a Solution to a Problem You May Not Have
One of the sales tactics used might be for protection against things that people didn’t even know they needed to worry about. One of these I’m familiar with is to use a trust to protect certain assets in the event an intended beneficiary might someday divorce. It is always a good idea to ask questions about these kinds of arrangements, which appear to be based on the potential client’s intended response of “well, of course I would want this!” The basic premise I am getting at here is that the options presented should be based on your own unique situation, and not a one-size-fits-all package that is being sold to you.
Bottom line for this post – find legal assistance that involves communication that is personal to you. How else will you know whether your plan is actually designed to work for you? A hallmark of the attorney-client relationship, enshrined in our Colorado Rules of Professional Conduct, is the obligation of “informed consent.” You are probably familiar with this in the medical treatment context – but you might not have known that lawyers in Colorado are obligated to meet informed consent requirements. This is often a two-step process:
(1) the lawyer must relay the necessary information to the client; and
(2) the lawyer must get the client’s consent regarding the lawyer’s next course of action.
What kind of information is relayed, how much information, and when the information is communicated, will typically vary according to the sophistication and experience the client has in legal matters and in making important decisions. When you meet with an estate planning attorney who is able to ask questions and also listen to your concerns and find out what your unique situation presents, you will be more confident that you are in good hands and that you are, as a result of informed consent, the one in charge of the attorney-client relationship in that the choices are made by you among a range of alternative communicated by the attorney to you.
There are alternatives available for any plan, and the best way for people to know they have made the decision that is right for them is to choose among the available alternatives. This is the nature of informed consent. If the estate planning documents do not suit a person’s or a family’s unique situation, there may be little point of putting a plan into place.
If you have a computer with internet access or you know how to find your local library, you can get plenty of information about estate planning and probate in Colorado (including the 2013 Senior Law Handbook) from the Colorado Bar Association, at www.cobar.org
PS Happy Birthday, Weird Al (Yankovic)!
©Barbara Cashman 2013 www.DenverElderLaw.org