Many attorneys make it a habit to avoid engagements for last minute emergency estate planning involving critically ill clients, and for good reason. There may be serious issues of mental competency, and unpleasant family drama far beyond the norm. Imminent death can bring out the best or the worst in clients and their family members. Working with a client facing critical illness can also be emotionally difficult for an attorney. I have had to leave a hospital room to take a deep breath and collect myself, before going back in to continue working with a seriously ill client. This can be disguised as a “bathroom break.”  I have cried in the car on my way home.

It is stressful to handle such engagements, but the opportunity to help another person make a thoughtful and graceful life ending is also immensely satisfying. If you take on such an engagement, it is very important to plan on allotting significantly more time than with a usual client, and to realize that the client is actually asking you to do much more than draft their last will, trust and powers of attorneys. What the client really wants is for his or her attorney to look at the big picture of their life and relationships, and to carefully consider both the on-going financial and practical needs of their family and loved ones. This additional work must be done in order to ensure that the survivors are able to successfully transition to living life without your client.

If you take on an emergency estate planning engagement for a critically ill client, I hope my recent experience with a particularly stressful and complex situation will help guide you. I was the third attorney to work with this family within a span of six months, while the elderly mother was critically ill, and after her death. Keep in mind that I had to work backwards on this matter, after the mother’s death, to correct the situation, and to a certain degree, I had the benefit of hindsight. Unfortunately, both the client and the prior attorneys were not happy with each other and there were bad feelings all around. I believe this unhappy result could have been avoided if the prior attorneys had taken a broader view of the engagement and had been more sensitive to the client’s needs and overall family situation. It is never easy being the third attorney on a matter, especially when the client is at that point (understandably) very suspicious of all lawyers, but I learned a great deal and had the satisfaction of helping the deceased client reach her goals, even if it was after death. Estate planning attorneys should treasure those moments when we can truly help and make a difference in our client’s lives.

Here is the story. I received an urgent call from a middle-aged man, let’s call him “Mark,” about one month after his mother had died. In his late teens, Mark had been diagnosed with mental illness (acute and paralyzing anxiety and depression) but was still relatively highly functioning. He had always lived with his mom and dad, who had passed several years before. Although Mark was bright, he had not completed college or trade school, and had not been able to hold down a job. Social Security was his only source of income. Through frugal living and wise investment, the mom was able to save over $1,000,000 which she wanted to use to fund a special needs trust for Mark (along with their home), so his needs would be taken care of after her death. There was another brother, long estranged, living in Europe. There were no family members or friends nearby to provide help or support to either Mark or his elderly mother.

Mark was a good son. He had spent over two years faithfully taking excellent care of his elderly and very sick mother. He made sure she went to doctor’s appointments, cooked all the meals, did the grocery shopping and kept the home reasonably clean. But he was totally unprepared to deal with the emotional upheaval and the practical reality of losing his beloved mother and living all alone.

When Mark called me, although he was certainly stressed out, he was courteous and able to clearly explain the situation. He was all alone, with no family members or friends to help, and he had no access to money. I called the two prior lawyers to get some background and was warned by both attorneys that Mark (who was mom’s primary caretaker and so was somewhat involved with the prior attorneys) was extremely difficult to deal with, demanding and rude. This did not mesh at all with the man I spoke to on the phone and later met in person, who I found to be pleasant and cooperative.

Practice Tip: This may sound obvious, but it’s important to be very patient and understanding when dealing with clients (and adult caregiver children) who are under great stress and/or suffering from mental illness. It is not possible to overstate the stress that adult children feel when taking care of sick, elderly parents. The emotional and even physical demands are enormous and can include needing to help the parent physically move from the bed to the bathroom, changing adult diapers, cleaning up vomit and other human waste, dispensing medication, staying up nights with a parent so sick and in pain that she is continually moaning and crying. This responsibility would be totally overwhelming to most people and is compounded when the caregiver child has his or her own mental and physical issues, which is often the case. In our aging world, this is the new normal. Adult children with their own complex issues are struggling to care for elderly and sick parents, who often refuse the assistance of paid caregivers, even if they can afford them. An attorney must understand that he or she is likely seeing the client and their close family members at their very worst, and under extreme stress. Always try to see the situation from your client’s point of view and be compassionate.

The main purpose of Mark’s initial call to me was to find out how he could purchase food for himself and pay the utility bills on the home he had shared with his mother, prior to her death. He had no access to funds for basic living expenses, despite his mother’s wealth and her intention to fund a special needs trust for his benefit. Mark’s only credit card was linked to his mom’s checking account, which the bank had shut down upon her death. His social security checks were still being paid into mom’s checking account, because she was his social security representative payee. Still, there was no way Mark could access those funds, because his name was not on the account. Amazingly, the two prior attorneys never thought to set up an emergency cash fund for Mark, even though they knew he was receiving social security disability benefits flowing into the mother’s checking account. Or perhaps those attorneys failed to ask. They both also failed to set up a successor Social Security representative payee, with a separate checking account for Mark’s use.

Practice Tip: Your dying client wants you to think ahead and consider not only the client’s assets but also the sources of income available to them and their dependent family members. For all household members dependent on your client, prepare a detailed list of each bank account, specifying the owner and the source of funds. While the client is still living, make sure that each member of the household has a separate checking account set up to collect their own income, from all sources, including social security and pension. Make sure your client’s loved ones have access to emergency funds they can quickly access, upon the client’s death. In this situation, there was enough time to plan, and the adult child’s social security check should have been set up to be deposited into a separate account, with a new social security representative payee. But the prior attorneys either didn’t ask the right question or failed to act. In addition, ABLE accounts (for a person who became disabled prior to age 26) and Link cards are great resources to make sure disabled adult children have some access to funds.

It was bad enough that Mark had no funds to purchase food and other basics. But the real shocker came next. As my conversation with Mark continued, I learned that his mother had actually died over a month before and was still not buried!! Her body was being held somewhere (he didn’t even know this fact), pending Mark’s decision on disposing of her remains. Due to his extreme anxiety disorder, Mark was totally frozen and overwhelmed. He simply could not make a decision about his mother’s burial, and he did not have the skills to follow through and make it happen.

In Illinois, the agent under a health care power of attorney has the right to dispose of the principal’s bodily remains and should take the responsibility to make final arrangements.  Oddly, despite Mark’s disability (he clearly lacked executive skills and was not able to take decision actions or make decisions), both prior attorneys agreed to name him as the mother’s health care agent. The result was that his mother remained unburied for over 30 days, and who knows when or if she ever would have been buried had it not been for Mark’s fortuitous contact with me. I am so glad that I thought to ask the client about his mother’s recent death and her Shiva and burial. It was stunning to find out it had not been taken care of.

Practice Tip: Take the time to get to know your client and understand the extended family situation. If there is no competent family member available to be your client’s health care agent (i.e. if the only relative is mentally ill) you must find a way to persuade the client to name a professional care manger or patient advocate to act as their health care agent. Also, when someone calls you after their parent has died, don’t assume the burial has taken place. See if they need any help making last arrangements and you will have a client for life.

My first task was to help Mark arrange a proper burial for his mother, who was Jewish, and should ideally have been buried within 24 hours of her death – not over 30 days! It was not Mark’s fault. He simply needed some help. With the assistance of a wonderful funeral director and an amazing local Rabbi, it was not difficult to arrange the funeral. After a few quick phone calls – literally less than 10 minutes, I had arranged for the mother to be buried, with dignity, the very next day. Because the son had no access to funds, fortunately, the funeral home was willing to front the costs, while I worked on the estate administration to access funds for burial expenses. It was hard to understand why the two prior attorneys did not recommend that the mother purchase a pre-paid burial plan. The prior attorneys knew the son had a mental health disability and would not be able to handle making funeral arrangements for his mother, let alone pay for it.

Practice Tip: For seriously ill clients, I always recommend they purchase a pre-paid burial and plan their own funeral and service. This takes much stress off surviving family members and ensures that the client’s wishes will be followed to the detail. Also, get to know local funeral directors and clergy. Even if your practice mostly consists of wealthy clients, there will likely be a time when a relative of a friend or a client, who lacks funds, will need help making final arrangements. Some funeral homes will provide discounted pricing for those truly in need. You will be a hero to your friend or client for making that burial or cremation happen.

The next task was compiling a list of the mother’s probate and non-probate assets, from scratch. This is totally normal when death is not expected. But given the overall situation, the prior attorneys should have helped the client get her affairs in order ahead of time. It made no sense to leave a disabled adult child with a mess of financial paperwork, and no detailed knowledge of the various bank accounts and insurance policies. The mother would have gladly paid additional legal or administrative fees so that her affairs could be put in order, ahead of time.

Practice Tip: If your dying client needs help organizing their financial affairs, advise the client to hire a daily money manager, professional organizer, or care manager to help the client with this critical task. This is far more cost-effective than using an attorney to help with these tasks. Do not let your client kick the can down the road, especially if the surviving family members are not competent or comfortable with financial matters.

Titling trust assets is a critical step in estate planning, but unfortunately is too often an afterthought for both clients and attorneys. In an ordinary estate planning engagement, it is reasonable for an attorney to provide the client with a “trust funding letter” which explains the steps a client must take to fund their revocable trust. But this is not a reasonable approach in a situation with a very ill, bed-ridden client. I was horrified to learn that the two prior attorneys failed to make sure that mom’s assets and beneficiary designations had been updated to reflect the addition of a special needs trust to the estate plan. The first attorney simply gave the mother a trust funding letter and ended the engagement. How is it possible that any attorney could reasonably expect that an ailing and elderly woman, bed-ridden in the hospital, could possibly take the steps to fund her own trust? Even worse, the second attorney had appointed himself as the agent under the property power of attorney, with the powers to update beneficiary designations, yet he failed to take any action. He sat on the beneficiary designations and did nothing for months, and then the mother died. It was too late. The result was that the estranged son, who had plenty of money, would inherit ½ of the estate. That was certainly not what the mother had intended.

Practice Tip: Assume that an estate planning engagement for the critically ill requires the attorney to follow up with updating beneficiary designations. This is not a “normal” situation where an attorney can get by with providing the client with a trust funding letter and then later claim the client did not engage you to help with trust funding. Any client who is sick and in the hospital would reasonably expect that assistance from his or her attorney. And, failing to update beneficiary designations could be malpractice, if the attorney names himself as agent under the property power of attorney with the specific power to update beneficiary designations to coincide with the estate plan.

In conclusion, when a critically ill person engages you as their estate planning attorney, it is imperative to take a broad view of the engagement. Think about what will happen to the client’s loved ones after their death. Think about what you can do to help make life more manageable for the survivors. For example, if there is a spouse who is not good with money, suggest the client hires a daily money manager, well in advance, to assist the surviving spouse and provide basic financial education. Encourage the client to do whatever they can, in advance, to take financial pressure off their loved ones. This includes not only pre-paying a burial, but pre-paying or paying off other important or large bills, such as medical, real estate taxes, utilities, insurance, and credit card bills.  This will give the survivors some breathing room and time to re-group. Make sure there are emergency funds available and that there is an organized file with critical information including the client’s accountant and the financial advisor. And, especially if there is an adult child with special needs, it is critical to put a transition plan in place for that child, including choosing in advance a care manager or social worker to help that child navigate their future. Try to arrange for the child with special needs to meet with the care manager or social worker well ahead of time, to make sure the relationship is a good fit.

Ideally, clients should not wait until the last moment to make their estate plans. But when they have waited too long, a dying client is counting on his or her attorney to help them do what needs to be done. This means doing much more than simply preparing the client’s last will and trust. Estate planning attorneys should be aware of this special responsibility and should take the time and thought necessary to anticipate potential issues that might adversely affect the client’s surviving family members. A thoughtful, carefully planned and implemented strategy for surviving loved ones is surely what estate planning clients really want from their attorneys, especially when death is sadly near.

Originally published by the American Bar Association RPTE e-newsletter, June 2020

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