How to Talk to Clients About Death, Disability and Decline

Written by Jill Roamer, JD, CIPP/US

Attorneys receive training in many areas—legal writing, oral argument, marketing, and business operations—but they are rarely trained on how to talk to clients about death, disability, and decline. Knowing how to communicate effectively with your clients about these topics will help them feel more comfortable, increase their trust in you, and likely lead to higher client retention. 

At a Glance

• Initiate long-term care planning conversations early to help clients acclimate to complex strategies.
• Utilize the power of silence and active listening to build trust and allow clients to express themselves fully.
• Shift discussions from death to legacy and values to make the planning process more positive and goal-oriented.
• Use empathetic, open-ended questions when meeting with grieving clients and avoid standard niceties that may feel overwhelming.
• Provide concrete legal solutions, such as revocable living trust provisions, asset protection trusts, and powers of attorney.

When should you begin discussing long-term care planning with clients?

In WealthCounsel's elder law webinars, attendees often ask, “At what age should a client consider Medicaid planning?” The response not only addresses the client’s age and health but also implores attorneys to start talking to clients early about long-term care planning for disability and decline. 

It may be jarring for a client to first hear about elder law planning strategies—such as irrevocable trusts and asset transfers—when they are on the brink of needing them. Talking to younger clients about long-term care planning for disability and decline may help them acclimate to the idea of using irrevocable trusts, giving up responsibilities, and relinquishing control. Then, when the time comes to implement such planning, it is less shocking. When the foundation for elder law planning is established years before it is needed, the client will expect to plan for their disability or decline in their later years.

 

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Why is active listening important when discussing death or decline?

Instructors of negotiation tactics teach that understanding the power of silence is vital to mastering the negotiation process. Indeed, many skilled negotiators believe that whoever speaks first loses. Becoming comfortable with silence is a skill that is important in many areas of life, including talking to people about deeply personal issues. 

Lawyers often want to jump in and solve a problem—or they show off how smart they are by providing a thorough legal analysis. But when it comes to death and aging, there is no solution. We cannot outsmart death with legal evaluations, refined arguments, or scholarly conclusions. It is the one certainty in life, and there is no “solution” for it. 

When talking to a client about their death or decline, it is very important to understand the power of your silence. Shut up and listen. When they have finished expressing themselves, do not jump in right away to express your thoughts. Allowing the client to drive the conversation will help them feel more understood and create trust. When it is appropriate for you to speak, avoid euphemisms, ask open-ended questions, and follow their lead. 

How can you shift the focus to a client’s legacy?

Instead of talking about death, it may be easier for a client to discuss their legacy: What impact do they want to have on their loved ones, pets, or favorite charities after their death? How can you structure their plan to ensure that their legacy is carried out? Shift away from uncertainty and toward a clear plan designed to carry out their wishes.

Talk with clients about their values, not just the end result. Find a way for them to share their story with their loved ones and community. For example, instead of a client giving a lump sum to their alma mater, perhaps—after thoughtful conversations with you—that client might decide to set up a scholarship fund for students attending that college. Or, if a client has concerns that their family will no longer meet for holidays after they have passed, perhaps a family vacation fund could be incorporated into the client’s plan.

What are the best practices for meeting after a client’s loved one has passed?

Even through their pain and tears, clients often need legal counsel after a loved one has passed. It is difficult to know what to say to someone who is grieving, however. Highly emotional situations may be uncomfortable for both the grieving person and the attorney meeting with them.

Do not ask a grieving client, “How are you?” It is difficult to remember not to ask this question or similar ones, as they are often standard greetings and are sometimes even meant rhetorically. But asking a grieving person how they are doing can feel overwhelming. Some may even consider it rude. Skip the niceties and offer a greeting along these lines instead: “I’m so glad you could make it in to see us today. I know you’ve been going through a rough time, but we are going to do everything we can to help make it a little easier for you.”  

Do not offer your own unrelated story of grief unless there is a clear point that you are trying to make to assist the client. They likely do not have the emotional bandwidth to appreciate your story; moreover, the focus should be on them. If you knew the deceased, however, feel free to offer a story or kind memory about them.

The following are some examples of empathetic questions that might make sense to ask:

• “Everyone processes grief uniquely. What differences have you observed in how your family and friends are coping with this?”
  

• “What is something you wish others understood about your experience, or what support do you need from them?”

• “What are some of your best memories of the deceased?”

Those who are grieving may find it extremely burdensome to even leave the house. Offer Zoom meetings as an option to make it easier for a grieving client to get their legal needs met. Finally, provide a list of local resources for grief recovery in your office.

What legal solutions address death, disability, and decline?

After the client has expressed themselves fully, you can discuss with them how you can help ease their mind about their concerns. The following are some of the legal solutions you may want to discuss:

Revocable living trust disability provisions. Both the Wealth Docx and Elder Docx revocable living trust (RLT) documents contain an article providing instructions for what happens when a grantor becomes incapacitated. The Administration of Our Trust During a Grantor’s Incapacity article begins with a special definition of incapacity that applies only to that article, and the provision allows the trustee to determine if a grantor is incapacitated. The document is structured this way to avoid delays in decisions or actions authorized under the incapacity article. The article authorizes actions such as obtaining and maintaining medical care for the incapacitated grantor, attending to their spiritual needs, and gifting in order to carry out the grantor’s estate and long-term care planning objectives. 

Medicaid Family Protection Trust. The Medicaid Family Protection Trust (MFPT) is the cousin of the Medicaid Asset Protection Trust. Both trusts protect assets from being countable for long-term care Medicaid eligibility considerations, but the former is specifically designed to provide asset protection for both the grantors and the trust beneficiaries. Informing clients about an MFPT may shift a discussion about disability and decline from doom and gloom to asset protection for the whole family. 

Powers of attorney. Financial and medical powers of attorney are cornerstone documents for planning for a client’s decline. Clients of all ages should have these documents in place to allow others to make important decisions on the client’s behalf if the client is unable to do so. 

Putting These Communication Strategies into Practice

Talking with clients about their death, disability, and decline may be uncomfortable for some, but it is a skill that can be learned. Being tactful and empathetic is important for building client trust and fully learning about a client’s needs. It is important to learn not only how to be comfortable with silence but also its value in active listening situations. Develop a sense of when to offer guidance and legal solutions, such as incapacity provisions in a trust document, asset protection trusts, or powers of attorney. Be sure to also train your staff how to talk to clients about death, disability, and decline.  

About the Author Jill Roamer, JD, CIPP/US WealthCounsel, LLC Jill Roamer has been a practicing attorney since 2011. As the Editor in Chief of Elder Law at WealthCounsel, Jill ensures Elder Docx™ provisions comply with federal and state law and is responsible for drafting and maintaining the corporate data privacy policy.