Friday, May 22, 2015

Ethical Wills: A Gift of Wealth Beyond Money


Ethical wills are a way of conveying personal values and history, and provide a legacy for families and future generations.


Ethical wills are a simple yet powerful way to communicate values and intentions. They are typically letters addressed to a specific audience, such as the writer’s child or immediate family. They can be excellent relationship building tools for advisors when used in conjunction with their financial planning services. Because they are not legal documents, any advisors can address this subject with their clients. By incorporating ethical wills into your practice you may find an entirely new level of trust and gratitude from your clients, their families, and their loved ones.

In the securities world, the “Know Your Client” rules dictate that we must know a certain set of financial data before we recommend products and services to someone. Of course most of us go beyond that to know them on a more holistic or personal basis. After all, it’s a relationship business, right? But how deeply do you really know your clients? Maybe you know where they grew up, what their favorite hobbies are, or even their pets’ names. 

But do you know what really motivates them? Do you know what they would like their legacy to be and how they would like to be remembered by their families and friends? Those are conversations that are difficult to broach, and often financial review meetings are not structured to ask such intimate questions. 

Knowing what motivates us—our aspirations, our ideals, our most cherished principles—is at the heart of our legacies and can serve as a powerful tool for all aspects of wealth management. Goals become easier to reach when we understand our internal motivations and values. Accomplishments viewed in the context of WHY we did what we did have greater lasting meaning and value to future generations. Yet most people rarely stop to ponder and uncover those deep intentions. Ethical wills are a way to capture and communicate those values in a personal and powerful way. 

Nothing New
It’s not a new or novel concept. Examples of ethical wills and moral teachings can be found in the Bible and other ancient religious teachings. At its foundation, an ethical will is a letter from the heart to describe what is important from the writer’s perspective to their loved ones. Those important thoughts may be life lessons, lasting values, good deeds to carry on, or wishes for the future.

A personally written ethical will becomes a valuable communication to others either after a life’s passing, during a period of critical illness, or perhaps even more powerfully while we’re alive together. Dr. Barry Baines, a hospice medical director and long time advocate of ethical wills, says, “An ethical will can mean more than any material possession you might bequeath (Baines 2002).” Dr. Andrew Weil promotes drafting an “ethical will as a gift of spiritual health (Weil 2005).”

Get It in Writing
Just as it is not always easy to get your clients to address estate planning or health-related topics, neither is it easy to get them to contemplate their legacy. Even if you approach the subject with them, not every client will write an ethical will. Few people enjoy writing and even fewer will take the time and effort to look deeply within themselves. Getting started often needs a motivation. 

If they are facing a critical or important life event, it can be a great time to discuss the subject. Let them know how important it would be for others to hear their thoughts at this time. While their feelings are heightened and their thinking is focused, writing will be easier to start and have more meaning when finished. Entering hospice care has often been the time when reflection of life is contemplated and can be encouraged to write it down. Drafting an ethical will could be linked with a child’s or grandchild’s birth, when updating a living trust or advance medical directives, at the holidays or after a family reunion, or upon reaching a milestone birthday or anniversary. On the eve of Barack Obama’s inauguration as President in 2009, he wrote a powerful ethical letter to his daughters to explain “why I decided to take our family on this journey (Obama 2009).” 

If there is no immediate event or motivation, reading about the impacts that can result from heartfelt conversations can elicit feelings that lead to action. A personal gift of a book such as Helga Hayse’s Money, Love, and Legacy (2010), along with a handwritten note, can be a great prompt to begin the internal and interpersonal conversations that lead to a sincerely written letter.

Four-step Workshop Process
Offering a workshop on writing ethical wills can also be a great way to get more people started. Church groups, senior groups, or creative writing classes at community centers welcome this valuable subject. The workshops can be done in as little as ninety minutes, but two or more sessions to allow proper reflection and organization are most effective. 

1. Step one: Ask each individual to answer the question: “Who am I and what do I believe?” Time should be given to participants to write and reflect on their answers. Encourage them to brainstorm and save editing for later. This is usually a private, internal conversation, and only ask gently if anyone would like to share what they learned about themselves. 

2. Step two: Ask “What do I want to share and with whom?” This will determine the tone and direction of the letter. Sharing this within the group often clarifies the motivation for the individuals writing their ethical wills. 

3. Step three: Ask “When and how do I want to communicate?” or “Do I want to leave a letter for others to read or deliver it myself?” 

4. Step four: Each person should decide how he or she wants to create the project. Ethical wills are most commonly completed in a written letter format, but other approaches include audio recordings, photo projects, or videotaped conversations. 

A workshop can be structured using any or all of three basic approaches to writing an ethical will. As the workshop leader, you can start with a pre-set outline and a list of suggestions for answers. You could begin with structured exercises that ask a series of questions and allow participants to do some free-form writing. Or you could begin the workshop with a blank sheet of paper and allow them to draft their own unique document. Depending on each person’s writing ability and confidence, the methods go from easy to difficult and from formatted to creative. 

There are many sources for examples of ethical wills, outlines of each approach, and powerful questions to engage and prompt your audience (Baines 2002). There is also an “Ethical Wills and Legacy Letters” LinkedIn group of professionals to participate in. You may download a structured exercise questionnaire, “Wealth Beyond Money: Sharing the Richness of Your Life with An Ethical Will” at www.kingwealth.com

An ethical will doesn’t have to be written only once  or for a single audience. It can be revised, rewritten, and re-shared as many times as the writer would like. Regularly asking the three questions above will prompt the writing of many types of ethical wills, for a variety of purposes, and for many different people.

Heartfelt Changes
Wealth management is not just about the money. It’s also about morals, personal values, family history, remembrance, and spirit. Opening up dialogues with your clients will not only lead to better relationships but also greater service opportunities. Dr. Denise Federer, of the Federer Performance Management Group, coaches owners of family owned businesses. She states, “There are clearly identified additional opportunities for retention and growth of assets that are available to financial advisors if they are willing to redefine their clients from single individuals to multi-generational families.” Serving in this way requires intergenerational communication skills and an ethical will is a great foundational tool. The more we can uncover about our client’s essential hidden motivations, the better we will serve them and their families. 

If you knew your client’s deepest motivations, how would it change your relationship with them? How could you better serve them? This can be a game changer. They will look to you to help guide them in their most critical moments. You will be asked to help them make decisions that will affect their family relationships and shape their futures in a much more significant way. Your professional relationship will expand beyond money, products, and services. You will be valued as a trusted advisor and cherished friend. Incorporating ethical will writing into your practice promises impactful changes. Change a client, change a family. Change your practice, change yourself.  • CSA


Paul S. King is a Certified Financial Planner® practitioner and president of King Wealth Planning in the San Francisco Bay area. He has spent more than twenty-five years in the financial planning industry. He is a Registered Principal with LPL Financial, and has been a featured lecturer and instructor for Fortune 500 companies. He is the author of the “Financial Planning for Career Transitions” course and “The Identity Theft Resource Kit.”

Ethical Wills: A Gift of Wealth Beyond Money was published in the Autumn 2013 edition of the CSA Journal.

Thursday, May 21, 2015

Solo Aging: The Next Frontier

Older adults who live alone, and are without children or close relatives, must find ways to stave off loneliness and isolation by developing strong, social support systems.




As a professional advisor, you interact with baby boomers on a regular basis. In most cases, these are the children of the clients you serve. Whether or not they were your initial point of contact, these adult children’s lives are intertwined with that of the client, and as they navigate the waters of their parents’ declining abilities, the question they inevitably ask themselves is, “What will happen to me when I am that age?” For most of these boomers, their fate will lie in the hands of their own children and their ability to communicate their wishes to them while they are still able. But what about those who don’t have children? They could be called “Solo Agers.”

Bill and Karen live in Seattle, are in their mid-sixties, in good health, still actively earning a good income as management consultants—one in a technical field, the other in human resources—and have various friends with whom they enjoy spending time. Many of their friends are grandparents now and spend as much time as possible with grandkids, often travelling frequently to visit them in other states. Some have even relocated in recent years to live closer to their grown children and their families. Many are starting to retire now, and Bill and Karen are also in the beginning phase of winding down. 

However, Bill and Karen are different from many of their peers in that they don’t have children. This was a conscious choice they made in their younger years. They determined that children did not really fit the pattern of their busy professional lives, so they decided not to become parents. They do not regret this choice, but it does present some challenges as they face the future. Bill and Karen are solo agers

Sharon is also a solo ager. She is a sixty-four-year old, single professional woman living in the Silicon Valley area of California. She has been married and divorced twice and, also by choice, never had children. Like many of her contemporaries, Sharon lives alone in a two-story condominium. She has one brother who lives on the East Coast. Her aging parents also live on the East Coast and Sharon travels to Maryland to visit them two or three times a year. Her brother has children, but he lives 3000 miles away. Sharon was not part of her nieces’ lives when they were growing up, and has little relationship with them.

Bill and Karen and Sharon are far from alone in their choice of a life without children. The rate of childlessness in American baby boomers is 19.4 percent (Pew Research, 2010). That is almost double what it was in previous generations. This abrupt change in the childbearing habits of Americans is due to two very important shifts that came about in the 1960s and 1970s:

  • The birth control pill allowed women and couples to be spontaneous in their sexual escapades in or out of marriage, with very little risk of an unwanted pregnancy.
  • Changes in employment law allowed women to attain jobs and promotions that paid enough for them to stay single as long as they chose, and not have to rely on a man for support.
  • The “So what?” about solo aging is that one in five adults will have no grown children to help them with the routine tasks of daily life, decision making, household relocation, or any of the other myriad things adult children do for their aging parents. 

Michael is a sixty-seven-year old businessman living in a small town in upstate New York. He has been a widower for almost ten years now, and has forged a comfortable life for himself in his modest home. He still runs the metal shop business he opened when he was in his thirties, though today his arthritis prevents him from doing much of the hands-on work. He has three younger employees who do the production work, but Michael still keeps the books, meets the customers and oversees the day-to-day operation of the business. He has two sons in their late thirties. One is working and raising a family in Utah; the other is currently working and living in cosmopolitan London with his same-sex partner who was raised there.

Michael is not technically a “Solo Ager,” but he will face a similar challenge. Like many parents today, he watched his kids grow up and move away from the small towns in which they were raised to seek work and other opportunities that were not possible in their home community. He has a good relationship with both of his sons, but everyone is busy with their lives and visits are infrequent. They keep up with one another by email and phone. Neither is likely to move back to upstate New York or even spend much time there.

Who will be there to help those who will live into their late eighties, nineties, or beyond? Women who reach sixty-five have about a 50 percent chance of living into their nineties. Men are no longer far behind. The U.S. Government Accounting Office predicts that by 2020 the number of older Americans living alone with no living children or siblings will be 1.2 million (GAO 2002). That is almost twice the number without family support than was reported in 1990. This will be much more than a personal dilemma; it is a societal issue that needs attention if we are to avoid a crisis in elder care that our country is totally unprepared to face.

The Importance of Social Community
We know that the existence of friendships and social relationships (i.e., a support system) are critical in staving off feelings of loneliness and isolation in later life. At first glance, it may seem like Bill and Karen are much better prepared for their later years than is Sharon or Michael. However, unless Bill and Karen die together in a plane crash or car accident—an extremely unlikely scenario—one of them will outlive the other and will be alone, just like Sharon. In addition, studies have shown that married couples often rely on each other for support and companionship to the exclusion of outside others. When one of them dies, the widowed spouse is in worse shape, socially, than someone of the same age who has been single for many years. So, Sharon and Michael may indeed have better chances of maintaining that critical social support system than either Bill or Karen!

As people age, they need companions and potential caregivers close by who care about them and whom they trust. Solo agers and those with children in far-flung places need to begin thinking about how they can reinforce their social support system while they are still active and have choices. The most proactive step they can take now is to continue (or begin) growing a network of friends and mutual support groups, and taking the necessary legal steps to ensure they are cared for and treated tomorrow as they would want to be today. 

As advisors to the senior community, you are in a position to offer guidance to those who will soon be in that position—those baby boomer-era kids of your current clients. You will likely discover that many of them are themselves solo agers. And based on statistics,
you may be one yourself. Following are some guidelines you can use when advising the solo agers and singletons in your sphere of influence. 

Create a Support Network
The most important preparation anyone can undertake is to create a support network. In addition to existing friends, candidates might be neighbors, fellow church- or synagogue-goers, like-minded hobbyists, professional colleagues, or people they’ve known since
childhood. Spending time together as a group going to movies or theater performances, or sharing meals helps develop a bond. Then begin to discuss this topic with one another and develop some agreements – a kind of pact – for how they will care for one another in later
life. Here are some ideas: 

Arrange to live near one another. If you do not already live close by, research some communities that you can all afford and agree would be a good place to age. The earlier you plan the better. You will want to live as close to one another as possible, and co-housing communities provide the best examples of this approach. Some co-housing groups have gotten together and purchased whole (small) apartment buildings or triplexes; others have built their own complexes. 

There are several well-documented and successful senior co-housing communities in the U.S. and more are being developed every year. The oldest and most established are Glacier Circle in Davis, California; ElderSpirit in Abingdon, Virginia; and Wolf Creek
Lodge in Grass Valley, California. To learn about these communities and how they were formed, and for more information on co-housing in general, go to www.cohousing.org.

Another possibility is to select a corporate-owned “retirement community” that already exists and plan to rent or purchase homes in the development. If the idea of a planned community doesn’t appeal to you, find a one-story tract of homes in a small community
with nearby services and purchase or rent homes near one another.

Living next door is the ideal. Barring that, get as close as you practically can. Deborah, a Palo Alto professional woman in her early sixties, has made such a plan with her two sisters, also Silicon Valley professionals. None of the three of them ever married or had
children, and as they began to pitch in to help their aging parents, it quickly dawned on them that they had to think about their own aging process and begin to plan for it. They are starting to purchase additional homes in the cul-de-sac where Deborah’s home is located. This will put them within walking distance of downtown Palo Alto, several transit systems, and close to Stanford hospital.

Create legal documents. Name each other in your advance directives for health care, either as primary contact or as successor to spouse. That way, if you are the remaining spouse, someone who knows you and cares about you will make decisions on your behalf when you no longer are able. Complete a Five Wishes document if you prefer. Five Wishes is used in all fifty states and in countries around the world. It meets the legal requirements for an advance directive in forty-two states. In the other eight states, the completed Five Wishes can be attached to the state’s required form.

Share some financial information. Most Americans are taught not to share their financial situations with anyone outside the family. And many people don’t even share that information with their children. However, if you are going to have people around you whom you can count on in a crisis, those trustworthy friends must know at least a little about how you plan to finance your older age. Do you have long-term care insurance? Who has access to your bank accounts and investments? If you need that money for your own care, someone needs to be able to access it or your care will be in the hands of the court. It might be prudent to hire a fiduciary to care for your assets. In some states, fiduciaries are licensed professionals. It’s best to consult with an estate attorney for referrals.

Keep the door open. As you age, encourage (relatively) younger people to join your group and incorporate them into the planning. This will ensure protection of the integrity of your decision making over time.

The baby boom generation is just now reinventing retirement, and as it continues to age, new paths will be charted and new models for living will evolve. When the time comes, there is little doubt that boomers will also reinvent old age. For now, it’s important for those who work with older adults to be part of the advance guard in preparing the next generation for their later years. Here is an opportunity to help some of the most vulnerable members of that group prepare for the safest, soundest future possible. •CSA


Sara Geber, Ph.D., founder and president of Life Encore in Los Gatos, California, is a life planning and transition expert for baby boomers. She also has a special interest in the needs of people over fifty who are without children and aging alone. She is on the board of directors for the Life Planning Network. Contact her at 408-355-0101, or visit www.lifeencore.com.

Solo Aging: The Next Frontier was recently published in the Winter 2015 edition of the CSA Journal.


Blog posting provided by Society of Certified Senior Advisors 
www.csa.us

Wednesday, May 13, 2015

Caregiver Grief: Recognizing and Addressing the Symptoms

There is no doubt that caregiving is a stressful, emotionally charged responsibility filled with conflicting emotions. The emotional stress of caring for persons who are aging, chronically ill, or disabled can be debilitating for family members as well as professional caregivers.


Grief is universal to the human condition, but it is especially prevalent in aging populations and those who care for them. The experience of aging is replete with loss: loss of function, loss of roles, loss of visibility in popular culture. The experience of caregivers is also one of loss: loss of characteristics of their loved one, loss of freedom, loss of social support. That loss is a part of aging is not a new concept, but surprisingly the conceptualization of these losses as in the context of grief is. Historically, most theories of grief have focused on the process of grieving a fixed loss: someone dies and those who remain must process that person’s passing. This is not true for caregivers, who often experience the loss of their loved ones little by little, while simultaneously processing their own losses associated with the process of aging. Increasing evidence demonstrates that the death of a loved one after years of caregiving is not the impetus for grief, but rather the losses in function, roles, and other aspects of personhood and relationships during the process that begin, prolong, and often complicate the grieving. 

The concept of grief as a process is a relatively modern idea. Many of the currently aging population and their caregivers were not raised with the concept of grief as we now know it. While they were exposed to  loss and know of it as a “fact of life,” many of them are  not aware of the common symptoms and experiences of grief. They are often unaware of the nature of grieving, thinking its primary component is sadness. 

Edward John Mostyn Bowlby (1961) was one of the pioneers who examined the psychological process of mourning. He defined four stages of mourning, each with characteristic symptoms and consequences if the grieving person is not able to work through them. 

Shock and numbness, where the loss does not yet feel “real,” emotionally or cognitively. People may very well experience symptoms during this stage, but they tend to be more physical in nature (fatigue, loss of sleep). People who are not able to move through shock and numbness may not be able to accept their loss and may shut down emotionally.

Yearning and searching, where the loss is acutely felt and people search for something to fill the void or provide comfort. People who are unable to process through the phase may spend years trying to compensate for the loss.

Despair and disorganization, where the loss is accepted and a sense of despair bordering on hopelessness causes people to question if they will ever feel better, or be able to recover and have a normal return to life. Those who are unable to process through this phase may continue to feel despair, anger, and/or depression that will cause a persistent negative outlook on life.

Reorganization and recovery, where despite the loss, life begins to be restored. People establish new ways of living and new beliefs about the future. This is a stage characterized by both acceptance and rebuilding. In Bowlby’s (1961) conceptualization of mourning, during this stage, people are able to focus more on other emotions and experiences, rather than the grief they have been coping with. 

It was Bowlby’s initial study of grief that provided the inspiration and foundation for the more familiar stages of grief later established by Elizabeth Kubler-Ross (1969): Denial, Anger, Bargaining, Depression, and Acceptance. Similar to Bowlby’s conceptualization, each of these stages of grief is thought to follow a linear process, have characteristic features consistent with its name, and have consequences for failure to process through them. Kubler-Ross’s stages of grief have been modified in recent years to include an initial shock phase and a testing phase before acceptance, but the conceptualization remains the same: a linear process with fixed goals and eventual recovery. 

Where these theories provide relevant information that often resonates with the experiences of grieving persons, they do not adequately account for the grieving process that those who love and care for them experience. For caregivers, there is no fixed point in time where a loss occurs. Rather, they face the daily experience of processing grief associated with loss of partnership and companionship, loss of freedom, and loss of roles, while still holding on to the pieces of independent function and character that remain in their loved one. Ernest Dimnet, a French priest and author of the book The Art of Thinking, famously quoted, “The happiness of most people is not ruined by great catastrophes or fatal errors, but by the repetition of slowly destructive little things.” This is the truth of experience for people with progressive illness and their caregivers.

Caregiver Grief
Caregiving has traditionally been considered an obligation that has been defined as difficult, mainly for the burdens of time, financial, and physical abilities it entails. It has not been historically conceptualized as an ongoing process of grief, however, research on the experiences of caregivers has consistently demonstrated that symptoms that were previously considered aspects of fatigue associated with the roles of caregiving are actually more consistent with the experience of grieving conceptualized by psychologists like Bowlby and Kubler-Ross. According to Waldrop (2007), caregivers often express significant negative thoughts, emotions, and physiological responses associated with their experiences that are common aspects of the grieving process. These include regret, guilt, despair, anger, loneliness, loss of roles, fatigue, crying, agitation, cognitive difficulties, and a sense of things being “unreal.” Meuser and Marwit (2001) define caregiver grief as the cognitive, emotional, and existential aspects of the constantly changing demands of care and anticipation of outcomes.

When working with older persons and their caregivers, professionals will inevitably witness aspects of grief of which caregivers are unaware. This lack of awareness can lead to an internalized sense of confusion, depression, and often sense of guilt and shame associated with the experience. This often manifests in statements like, “I’m just so tired all the time. I feel numb, sad, guilty, angry, resentful.” The knowledge of grief, and the ability to name and articulate its experience is a valuable tool for any professional who works with these populations and their caregivers. This gentle aspect of rapport building and support has the ability to stabilize internal experience and redirect emotions that could lead to personal shame, guilt, and depression.

It is important to note that caregiving is not a unilaterally bad experience. It is also associated with positive feelings, like the ability to be present for the last moments of a loved person’s life, a sense of satisfaction, and comfort with the care being provided, However, incorporating its potentially detrimental impact is a newer development in the fields of fostering healthy coping with chronic conditions and caregiver support. Models of caregiver grief especially are being developed and studied to understand and intervene in the caregiver’s experience. Two of these models are the Relief Model and the Complicated Model (Waldrop 2007).

Understanding Caregiver Grief:
Two Models

The Relief Model focuses on the resolution of stress resulting from the eventual death of the care-receiver. It also incorporates aspects of the longer trajectory of care, such as the time to prepare for the eventual loss, and changes in roles and responsibilities. Those caregivers who experience relief often begin to resume previous activities or roles. However, they may struggle with a sense of guilt at anticipating their loved one’s death while trying to balance the relief associated with knowing their loved one is no longer suffering.

The Complicated Model demonstrates how elevated levels of distress associated with caregiving can become more complex after the death of the care-receiver. The losses and levels of stress incurred while caregiving and failure to acknowledge or grieve these losses can lead to great difficulty in the post-death bereavement phase. These caregivers have great difficulty finding closure and resolving grief while finding a method of reintegrating into life following loss. They often struggled greatly with their role as a caregiver while simultaneously not understanding how to have another role in the loss of the care receiver.

Both of these models demonstrate that even when experiencing a sense of relief, there are still difficulties in coping with and processing the experience of being a caregiver. Professionals can aid in the healthy process and coping with loss that comes with caregiving, especially for those who are moving in the trajectory of the complicated model. According to Mullan (1992), the perceptions that caregivers have about their caregiving experience, and the way they grieve while their loved ones are still living, significantly impact the way they will adjust to the loss of a loved one after death. One does not have to be a psychologist to intervene at any stage of the mourning, grief, sadness, and difficulty that caregivers experience. Even the most subtle intervention of listening and acknowledging another person’s experience can significantly impact its outcome.

Assessing Caregiver Needs
The first step to helping anyone is assessing his or her needs. Assessment of grief and caregiver burden requires a holistic approach, encompassing the biological (fatigue, problems with sleep), social (changes in family dynamics, personal roles), psychological (sadness, anxiety), and spiritual nature (death anxiety) of a person’s experience. 

When asking questions, it is valuable to prompt for answers in all of these categories. Each person experiences grief and stress in different ways. Where one may feel more psychological effects, another may feel more social and physical burden. It may seem simple, but the act of stating one’s thoughts, feelings, and physical sensations out loud is a profoundly impactful psychological intervention. It is the foundation of a principle called mindfulness (the ability to be fully present in the here and now) that enhances coping and acceptance. 

There are many ways to provide comfort to someone who is experiencing grief.

• Educate caregivers and those they care for on the nature of grief and how it is a response to all forms of loss, not just death. 

• Discuss how grief is an ongoing process that may contain themes like shock, anger, sadness, confusion. They do not necessarily follow a perfect order toward resolution.

One of the beneficial effects of educating is a process psychologists call normalization, where someone begins to understand that for something to be so well studied and talked about, it must be common. Never underestimate the power of helping a person to feel like he or she is not alone. Also, never underestimate the power of “bearing witness” to someone’s grief. We live in a world of platitudes. Sometimes the greatest gift you can offer is an honest conversation and genuine listening.

All of us will experience grief at multiple points in our lives. Most people will progress through grief naturally to some form of resolution. When people have difficulty in grief, it is usually the result of getting stuck somewhere in their process, as discovered by Bowlby and Kohlberg in their research. Part of what we do when we educate and listen to clients is to help them move forward with the process of grief, to “un-stick” themselves.

In addition to fostering process, it is also important to know about the resources available for people who are experiencing grief, and the additional burdens of being caregivers. There are many excellent websites (see Resources) that offer comprehensive education, information, and peer-support networks for caregivers. They often touch on the losses and experience of grief, and they can connect caregivers to other people with similar experiences. Local hospitals, churches, and community centers often have grief support groups and additional opportunities for people to connect with others in similar circumstances.

Responding to grief is not usually considered an explicit aspect of the provision of professional services for aging populations and their caregivers, outside of those whose jobs are defined by such support (pastoral care, therapists). Caregivers may be more likely to give details of their experience in passing and to the professional contacts in their lives: sharing concerns about taking adequate care of their spouse to a financial advisor, expressions of guilt or remorse to a doctor.

Many professionals have likely had clients share emotional and often taxing details of their lives. Having knowledge of the experience of grief and sharing its normalcy, giving their experience a name and a cause outside of themselves, can be a significant and impactful compliment to any professional service offered clients and their caregivers. Every professional is capable of assessing, listening, providing comfort and resources to clients who are experiencing grief and caregiver fatigue. In many cases, they can serve as a guide toward the relief model and away from the complicated model of caregiver grief. It also serves as a bridge to potential resources to aid in coping with grief and caregiver burden, and enhances the level of rapport, trust, and knowledge of client needs in a professional relationship.

A final note for professionals who work with aging clients:
In his book, The Wounded Healer, Henri Nouwen writes, “Who can listen to a story of loneliness and despair without taking the risk of experiencing similar pains in his own heart and even losing his precious peace of mind? In short: Who can take away suffering without entering it?” Those who aid in supporting aging populations are also psychologically affected by the sadness and grief of others. This is referred to as vicarious trauma, sometimes called compassion fatigue. Collegiate relationships, the ability to process and discuss the impact of our experiences as professionals working with caregivers, and resources like support groups and counselors are often appropriate venues for us to pursue to address our own needs and the impact of caring for anyone who grieves. It is our ability to care for others that makes us who we are, which allows us to be impacted by stories and be moved with a desire to help. As Leo Tolstoy said, “Only people who are capable of loving strongly can also suffer great sorrow, but this same necessity of loving serves to counteract their grief and heals them.” •CSA

Carilyn Ellis is a Fellow at the Boise VA Medical Center, specializing in oncology, palliative care, and primary care psychology. She completed her doctorate in clinical psychology at George Fox University in Newberg, Oregon. She loves serving those who serve our country, and especially working with Veterans. She can be reached at cellisalaska@yahoo.com.


Caregiver Grief: Recognizing and Addressing the Symptoms was recently published in the Winter 2015 edition of the CSA Journal.


Blog posting provided by Society of Certified Senior Advisors 
www.csa.us

Tuesday, May 5, 2015

Assessing Client Cognitive Function: Legal Pitfalls

Should an insurance agent, attorney, accountant, financial planner, or investment manager, be responsible for determining the cognitive ability of an older client when selling investment products? This article explores the legal implications.


Should an insurance agent, attorney, accountant, financial planner, or investment manager working with a client be held responsible to determine the cognitive ability of an older client? If seemingly beyond the scope of current law, regulation, or standard of care, consider the plight of California insurance agent, Glenn Neasham.

On December 14, 2010, Neasham was taken from his home in handcuffs and indicted under California’s Elder Abuse law on three counts of felony theft. Ultimately bankrupted by the ordeal, he was convicted ten months later of one count of felony theft and sentenced to three hundred days in jail. As a result of the conviction, his insurance license was permanently revoked, leaving him with no means of support or dignity.

His "crime?" Neasham sold an indexed annuity to Fran Shuber, the eighty-three-year old girlfriend of a client (the annuity was approved for sale in California to people up to age eighty-five). The bank from which funds were withdrawn to pay for the annuity reported the boyfriend for suspected financial elder abuse under California’s Elder Abuse Statute. He, rather than the insured’s son, was the named beneficiary. But the focus for abuse shifted to the insurance agent when it became apparent that Ms. Shuber may have suffered from Alzheimer’s disease. Intriguingly, the California Department of Insurance ultimately provided financial assistance to the local prosecutor who initiated The People of the State of California vs. Glenn Allen Neasham.

The nature and degree of the crime was triggered by the fact that the contingent surrender charge of the annuity—the "theft"—was greater than $950, which is the threshold for felony under California’s Elder Abuse law. The jury interpreted theft as the mere "taking" of something without looking to see if there was value received in its place—an issue that became the primary focus in the subsequent appeal before the California Court of Appeals.

It should be noted that at no time did a party of interest make a complaint about the sale of the annuity. The entire process was pursued by the Department of Insurance (DOI) and the local prosecuting attorney under the theory of elder abuse.

Not only did the prosecutor, by her own subsequent admission, fail to present evidence that Neasham knew or should have known his client might have been mentally impaired and could not make a decision regarding acquiring the annuity, but she also failed to acknowledge the much simpler remedy in such a circumstance: to request from the insurance company a rescission of the policy with full refund of premiums paid, plus interest under the well-understood principle of void ab initio— void from the start because incompetent individuals by law cannot enter into a contract. 

Ironically, Ms. Shuber’s estranged son obtained conservatorship of his mother at roughly the same time as the 2011 trial, and one of the first things he did was to surrender the annuity. The insurance company treated it as void ab initio and refunded the premium plus interest.

In the process of pursuing an appeal with a court-appointed attorney who had no experience in such matters, the case came to the attention of the 12,000-member Society of Financial Services Professionals. The Society retained local legal counsel to file an Amicus Curiae (friend of the court) brief to inform the Appellate Court of the insurance issues underlying the case, and to advise the court that there was no existing statute or standard of care suggesting that an insurance agent had the obligation to determine the cognitive ability of his client.

The Society was also instrumental in finding a national recognized law firm specializing in such appeals to take over the case. On October 8, 2013, the bizarre case of California vs. Neasham came to a close with a unanimous reversal of the felony conviction. While the state’s Attorney General vigorously appealed the reversal to the California Supreme Court, the State’s appeal was denied in January 2014. However, the Appellate Court’s reversal was “decertified,” meaning that while the reversal was valid, it could not be cited as precedent in future cases.

The effect of the reversal by the Appellate Court is that Neasham’s conviction of felony was nullified (as if it had never occurred), and while the prosecutor in the original jurisdiction had the theoretical opportunity to retry the case, the option was formally declined shortly after the California Supreme Court’s refusal to hear the case. The criminal case against Neasham has officially ended, but his life and family have been forever shattered.

To the best of our knowledge, this was the first case of its kind and scope in California, but it was not the last. Just months following the close of Neasham’s six-year ordeal, The People of California vs. Alan S. Lewis was filed in Riverside County. Alan Lewis had been a licensed life and annuity agent in California and had sold annuities to senior citizens, generally meeting with the clients in their homes. The criminal lawsuit included twenty-nine counts of felony burglary. The crime was similar to Neasham’s in that the charge of theft was based on the annuity’s contingent surrender charges and the extent to which those surrender charges were greater than $950. Unable to meet the $600,000 bail set in his case, Lewis was incarcerated in county jail for almost four months until all the charges were suddenly dismissed on July 10, 2014, without any explanation from the prosecutor’s office or the court. Lewis has retained counsel and is suing the county, allegedly for millions.

Meanwhile in Iowa, there was the case of St. Malachy Roman Catholic Congregations of Geneseo v. Ingram, a situation of a different nature but with an equally chilling implication for advisors. The defendant was a financial advisor to the decedent, but was sued by the beneficiaries of the decedent’s signed written estate plan. The beneficiaries alleged that the financial advisor was negligent in the performance of his duties, and therefore, the beneficiaries did not receive what they were supposed to receive under the plan.

Generally, the Doctrine of Privity is an agency relationship that only exists between the direct parties involved. A non-client or “derivative client” status usually only arises in the context of legal ethics and legal malpractice, and Ingram was not an attorney. While the trial court granted summary judgment in favor of the advisor and against the plaintiffs—concluding that Ingram, a non-attorney, owed no duty to the beneficiaries—the Iowa Supreme Court reversed the judgment entered against plaintiffs, holding that the case raised a genuine issue of material fact as to whether Ingram’s negligent performance of his agency responsibilities caused the beneficiaries not to receive a specific devise set forth in the decedent’s will. While that argument will likely be raised again in future cases, in this instance the U.S. Supreme Court ultimately denied the appeal of St. Malachy and the other charity plaintiffs because their claims were too speculative for recovery. A relief, we assume, for Ingram but not for the legal bar. 

Before we discuss the big picture implications for insurance agents and financial advisors—and indeed anyone selling investments or rendering advice or providing legal services—there are some quick and disturbing observations:

1. Alleged bad acts by agents such as misstatements, false advertising, or making adverse comments about other agents or insurance companies had previously been taken up in administrative proceedings by the DOI when pursued by a customer complaint. Today, however, the strategy appears to have shifted to that of criminalizing that which
had in the past been civil (although not necessarily polite!) in nature; 

2. With respect to the sale of annuities and life insurance, California has for a number of years accumulated budgetary reserves dedicated to making “grants” to local prosecutors to pursue agents who may or may not have violated the elder abuse laws; 

3. Will such reserves be featured in your state to fund investigations and prosecution? 

Is This the Wave of the Future? 

The cases discussed earlier indicate a possible trend by state prosecutors and insurance investigators to initiate criminal indictments and penalties and fines against financial advisors and other professionals who sell various kinds of services and products to older Americans alleged to have mental dysfunction or diminished capacity. 

This further suggests the possibility of new civil Causes of Action by new adversaries. The St. Malachy case is a precedent decision that gives notice to producers and advisors of expanded ways in which civil actions may be taken against them by those who were never their clients. Participants should not be surprised by the news of civil suits touting legal theories they never heard of. 

While cases dealing with misconduct related to the elderly are typically classed as either criminal or civil, new cases may be asserted as both. Criminal conduct typically encompasses robbery, domestic abuse and/or neglect, financial exploitation of elder adults, and obtaining property by false pretenses. 

Civil Conduct—that which is tortuous—includes abuse, neglect or exploitation, breach of fiduciary duty, fraud, constructive fraud, conversion, and undue influence.

Under both criminal and civil conduct investigations, it can be anticipated that inquiry will be made about the loss of mental ability that would impede choices and raise greater vulnerability. Such indistinct evidence as forgetfulness, confusion, delusion, mental dysfunction, diminished capacity, and early incidents of Alzheimer’s disease will be “People’s Exhibit #1.” 

Legal and Ethical Issues Underlying These Cases 

Should an insurance agent, attorney, accountant, financial planner, or investment manager working with a client be responsible to determine the cognitive ability of an older client? Consider the following: 

1. If the Neasham case and its progeny—or intervening or subsequent regulation or legislation—were to assign to a professional the responsibility for determining a client’s cognitive ability, what training and tools should (financial) professionals use for that purpose?

2. Will a safe harbor be provided for the professional who applies such tools?

3. The traditional definition of senior is age sixty-five, but California’s Elder Abuse statute provides significant sanctions for those found to be physically or financially “abusing” individuals as young as age sixty.

4. Further, common law in most jurisdictions will sanction financial abuse of other categories of disadvantaged citizens including those with physical or mental disabilities, some of which may not be apparent to the untrained eye.

The criminal charge on which Neasham was convicted was felony theft. The theft was defined as the inability for eighty-three-year-old Fran Schuber to immediately access 100 percent of the premium paid to acquire the annuity. Thus, both directly and indirectly, this case used the surrender charge of an annuity—almost universally applicable in such products—as the basis for the conviction of felony theft. 

The court and jury were unaware of the reason why many insurance products have a fee assessed against a policy’s cash value in the event of premature surrender or withdrawal. The jury equated the surrender charge directly with the commission received by the agent. 

The elephant in the room is that there are no clear standards of suitability to suggest what types of product should or shouldn’t be sold to older adults. California’s Department of Insurance approved the MasterDex-10 annuity for sale to consumers through age eighty-five, and while the criminal charges ironically did not address whether “the State” believed the product to be unsuitable, clearly this conclusion is inherent in the decision to prosecute for felony theft. 

Even though the Appellate Court reversed Neasham’s conviction, we are advised that other state DOIs and/or Attorney General offices have begun their own examination of cases to evaluate for elder abuse and failure to detect cognitive impairment. One logical conclusion is that agents and advisors will avoid working with seniors, in turn resulting in reduced annuity sales. This could hurt agents, carriers, and the clients who can benefit from deferred as well as immediate annuities as part of their overall retirement income and estate planning strategies.

Statistical Expectations of Life, Health, and Cognition

Seventy-eight million of “us” may ultimately be headed for our respective assisted living facilities. As a result, all client-facing professionals need to better understand the underlying issues of aging and dying. By the time we get into our sixties, our use of certain words or names that used to be so spontaneous has reverted to the tip of our tongues or the back of our brains, or seemingly, somewhere in the garage! We misplace our car keys more often. But when we eventually find them, we just drive away and perhaps grumble about the frustration and lost time trying to find them. On the other hand, if you find your car keys but don’t know what they’re for…well, that’s cognitive impairment. 

Cognitive ability is somewhat age-based, but we’ll all experience it a little differently and at different points in our later lives. To begin to understand this last third of our lives, it is valuable to start by understanding the basis of the statistical meaning of life expectancy, which depends on the scientific certainty of the number of deaths each year in an extremely large, homogenous group (as to gender, age, and health). Average life expectancy is the point at which 50 percent of any homogenous group has died and 50 percent are still alive (see Chart 1). 

There now exists a technology to provide a more personalized expectation, at least with respect to the subset of our age and gender peers who all have developed the same health issues. Doing a personalized life expectancy assessment on a seventy-five-year old couple can provide very useful information when it comes to deciding:

• how best to continue to fund a universal life insurance policy,
• how much income to safely take out of retirement resources,
• how best to work with them if there are elements of cognitive impairment.

Personalized life expectancy assessments are statistical and not individually predictive, but give a more granular and objective basis on which to make and manage financial decisions.

In the last few years, that same “personalized” approach has been extended to a statistical view of how much of our remaining years we can look forward to in good health, and the gradual process to physical impairment and dependence, leading to the need for skilled nursing. Such assessments can suggest (again from a statistical rather than individually predictive perspective) what we might be able to look forward to in the number of active “healthy” assisted living years, and skilled nursing years as a distribution of time and level of impairment over the remaining lifetime of the individual or couple. We predict that this type of data will be more and more in common use in our planning processes with our clients in the very near future (see Chart 2).

Similar attempts at helping us see the discrete segments of the last one-third of our lives through life and health expectancy data are also beginning to emerge with respect to cognitive expectancy, and this can help us do a better job with our older clients and their families as we find ways to help them through the progression of the stages of older life (see Chart 3).

Issues for Which Professionals Must Be Particularly Wary

1. It can sometimes be easy to gain the trust of certain older persons in order to get them to believe that they should change their investment portfolio or insurance or annuity products. This is often accomplished just by offering friendship and helpfulness to someone who is alone or lonely and appears vulnerable. It is not unusual for such individuals to get judicial sanction to become a “guardian of the property” and have free access to plunder their client’s assets. 

2. It is difficult to judge the passage of time, even if we have had fairly consistent contact with an older client. Over a period of years, the client may be declining and we’re either not paying attention, or we acknowledge it but unconsciously use it against them. Or we acknowledge it but we don’t want to do anything about it because it may jeopardize our position in one way or another. Missing how the passage of time catches up with aging clients increases the chance of making wrong choices about declining clients. 

3. It is not unusual to find a circumstance in which the professional has the ear of one child or another who brings the parent(s) to meet with the advisor. There is no acknowledgement that the client has diminished capacity, and it’s a wink and a nod about that incapacity. 

4. In blended families, children of a stepparent may bring in the parent, knowing of diminished capacity, yet manipulate the situation so the parent-in-law doesn’t inherit.

5. A caregiving adult child brings the parent to the professional, explaining that the other siblings aren’t really involved. The caregiving child gets the advisor to do those things that benefit the childwhile the incapacitated parent can’t really do anything about it. 

6. Some older individuals or couples may be lured by a nice meal in a nice restaurant—all the while presuming the competence/ability of the presenter. Such “advisors” are not at all concerned about the person’s diminished capacity. In fact, it facilitates their objectives. 

7. An unwitting or uninformed advisor may create the biggest problems. Older adults, even with diminished capacity, know when they’re not given acknowledgment. Their self-esteem and pride get injured. This derives from feeling their interests aren’t being given attention. This is not as crisp and sharp and obvious as some of these other issues, but it is what happens to us as we get older. 

Conclusion

There are some specific ways in which we can change our dialogue and client process with older clients in order that inadvertent elder abuse happens less frequently. Don’t forget that mental incapacity doesn’t necessarily mean someone is old; the person may just seem old because of incapacity. 

Here are ten things advisors and producers need to consider to avoid committing elder abuse on their clients:

1. Encourage older clients to begin their engagement with you by including chosen family members (assuming there are family members).

2. If older clients have outlived immediate family, tactfully discuss if there are long-time friends, neighbors, or friends of faith that they would invite to begin the engagement.

3. There are times when older clients have long-lasting relationships with bankers, trust officers, or attorneys. As appropriate, welcome the new clients to invite these professionals to the first meeting.

4. If convenient to the new older clients, suggest meeting in their home, and then alternate later meetings between their home and your office. 

5. Use a cognitive skills test with clients at the outset of the engagement.

6. Ask for permission to obtain a letter of “good physical and mental health” from the client’s personal physician. The explanation is that it may help you to protect the client’s estate or legacies against a post-death complaint that the “parent” was impaired and the advisor should have readily known. 

7. Slow down; use diagrams. Check in frequently: “Does this sound like it makes sense to you?” Ask the client to repeat back what they understand of the current discussion or decisions being made.

8. Make an audio or video at each meeting with all clients. “Ms. Smith, rather than having my attention diverted into my yellow pad as we talk about your financial situation and goals, if it’s OK with you, I’d like to tape this and future meetings. We’ll get you a copy within twenty-four hours so you and I can independently review details we might have missed in the conversation. Is that OK?

9. Technology makes it possible to have “virtual” meetings by audio and/or video conferencing that inherently facilitates maintaining audio and video records of those meetings. This becomes more critical when documents are going to be executed.

10. Have a staff member reach out to older clients more often than the engagement might require, just to maintain a connection. A simple “How are you doing?” conversation may also provide insight into declining health or failing cognitive ability. 

Professionals in law and tax, as well as planners in the fields of investment, insurance, estate and retirement, generally hold a position of trust with their clients, providing ongoing advice and consultation about their client’s personal and business issues. Yet even the smartest and best intended professionals may fail to notice a client’s cognitive degeneration and find themselves unwittingly entangled in a regulatory or criminal proceeding. 

Even if avoiding such onerous experiences in the short-term, an unhappy heir may sue a professional many years after a service has been performed with the accusation of neglecting to detect mental incompetence. All client-facing advisors would be well advised to consider devising policies and procedures within their practices—communicated and practiced by staff members—for the benefit of their clients and their own protection. •CSA



Richard M. Weber is founder and president of The Ethical Edge, Inc., in Pleasant Hill, California, providing fee-only life insurance analytics and consulting services to family offices and high net worth individuals. He currently serves as Chairman of the Foundation for the Society of Financial Service Professionals. Contact him at Dick@EthicalEdgeConsulting.com or visit www. ethicaledgeconsulting.com.

A. Frank Johns is Principal Partner at Booth, Harrington, and Johns of NC, in Greensboro and Charlotte, North Carolina. A specialist in elder law and fiduciary litigation, he is a certified elder law attorney by the National Elder Law Foundation, Adjunct Professor of Law on the faculty of the LLM Elder Law Program of Stetson College of Law, and is a Visiting Associate Professor at the University of North Carolina at Greensboro. Contact him at 336-275-9567, or visit www.nc-law.com.

Assessing Client Cognitive Function: Legal Pitfalls was recently published in the Winter 2015 edition of the CSA Journal.


Blog posting provided by Society of Certified Senior Advisors 
www.csa.us

Friday, May 1, 2015

Meet CSA Spotlight, Debi Lawson

CSA Spotlight
I became a CSA in the fall of 2013. My expertise and my passion is working with individuals and families with end-of-life planning, with a focus on final arrangements. After working at a funeral home for a few years, I learned the importance of pre-planning final arrangements, but I also learned the reluctance that people have to talk about death and end-of-life plans. Because a funeral home can be an overwhelming place to visit and plan, I did the research and developed my business, Essential Arrangements, and help people pre-plan their final arrangements, independently and without involving a funeral home. By planning independently, I can help families save hundreds, and sometimes thousands of dollars, while having their final wishes be personalized. My mission is to educate clients about the choices and options available, so they make informed decisions, and not decisions that are for the benefit of the funeral home. I teach my clients the importance of having written, complete plans, and having funding that matches those plans.

I have also added guardianship and conservatorship services to Essential Arrangements. Through my work with seniors, I have learned about so many who do not have family, do not have family members locally, or who do not have friends/family members that are an appropriate choice to handle the decision making for the person and/or their finances. I have clients who have been exploited by neighbors and family members, and it breaks my heart that no one reached out to help them, and in many cases, I was told by other professionals they knew "something was wrong" but didn't know who to call or what to do.

A particular passion of mine is assistance to adults with developmental disabilities. Being the mother of a special needs adult son, I have a place in my heart for this population, and am glad to assist, many times on a volunteer basis, whenever needed to do so. Many of these folks are outliving their parents and other family members, and my personal goal is to see that they are taken care of like a family member, as I hope someone would do for my son if I'm not here.

The CSA credential has opened up opportunities for networking with other CSA's, sharing information, having resources available to share with my clients, and continuing to learn how to better assist my clients. At first, I wasn't sure if becoming a CSA would be beneficial to me, but I was quick to learn that it is a great benefit, for my own learning and professional development, and for service to my clients. If I need someone in a different state or location, with a different area of expertise, it is easy to look at other CSA's on the website and locate the right person. With our society being so mobile and so spread out these days, being able to locate other professionals and talking with them prior to referring a family is a valuable service that clients appreciate. I learned so much at the conference last year, and made many wonderful connections with other CSA's. I am anxious for the San Diego conference this year, to renew those contacts and make new ones.

I am on the editorial board of the Senior Spirit. Our Senior Spirit newsletter is a valuable resource to share with clients, and I encourage every CSA to read and share the Senior Spirit newsletter. I encourage you to become involved in some way and not just "wear" the CSA credential. Volunteering for a committee or a board is a great way to get involved, to meet other CSA's and to make the most of your credential for which you worked so hard.

Debi Lawson, CSA
Essential Arrangements

Debi Lawson was featured as the CSA Spotlight in the April Senior Spirit Newsletter. 

Blog posting provided by Society of Certified Senior Advisors