Tag: Estate Planning

The Boilerplate Debate

November 25, 2017 / Michael

I’ve heard it a lot over the years when meeting with client families: “I did not read the boilerplate”; or “that’s not important, it’s just boilerplate”. The general feeling tends to be that boilerplate is a pain and really does not accomplish anything. The truth may surprise you.

What really is “boilerplate”? The definition is “standardized pieces of text for use as clauses in contracts or as part of a computer program”. Contrary to what many may believe, the “boilerplate” can make or break your estate plan. You see, it is impossible to predict what will happen in your life, your family and with the laws that affect your estate plan. At least in documents I draft, the boilerplate is there to cover all the situations I can think of that may come up. I do not draft it thinking it will happen; I draft it knowing that I want your plan to work how you want even IF it does happen.

We had a case recently where the boilerplate was critical to carrying out my client’s wishes after passing. A disgruntled beneficiary brought a suit to have my client’s trust declared invalid. We won. Then, we petitioned the court to have her removed as a beneficiary. How could we do that? Because the “boilerplate” of the document stated that if a beneficiary challenged the validity of the document, they would no longer be considered a beneficiary of the trust. It was very important to my client that his wishes be carried out. He had several friends, family and charities he wanted to benefit from his hard work and he did not want a beneficiary’s lawsuit to upend that plan or lessen the amount his chosen beneficiaries would receive. The “boilerplate” included a “no contest clause”, which was the key to minimizing the impact of the lawsuit on the other beneficiaries.

So, next time you review your estate plan documents, take some extra time to read through the “boilerplate”. And if you have any questions about why a particular provision is there, just ask me. I expect there is a good reason it’s there.

What Is a Trustee Supposed to Do?

September 6, 2015 / Michael

This summer has brought an increase in contested probate matters – that is, family and/or friends not getting along, or people taking advantage of others based on their position of power in someone’s estate planning documents. In many of the cases, it was actual or alleged breach of duties by a person appointed as Trustee.

I will not get into the gory details of the cases we’ve had this summer (several of which are still pending), but I do think they emphasize one thing – we all should know who/what a Trustee is, what they are required to do, and what they can be liable for. Of course, I am not going to be able to go into too much detail in this post . . . well, I could, but it would put you to sleep, if you are not asleep already 😉

In short, a Trustee owns and manages property for the benefit of someone else. Most commonly, this is someone named to administer and distribute your revocable living trust during a period of your incapacity or after you pass away. It is not like managing your own finances. A Trustee has the power and the obligation to manage someone else’s (your) assets for the benefit of the beneficiaries named in the trust. It is not a role to take lightly.

As far as the powers the Trustee has, basically they can do anything you can do. Sell, buy, transfer, get loans, make loans, and, if the your trust specifically gives them the power, they can handle your business, specially regulated assets (e.g. firearms), and many other things.

But, as they say, with great power, comes great responsibility. The Trustee has several duties and obligations, all of which fall under the general heading of “fiduciary duties” – that is, duties that are owed to others based on the Trustee’s relation to them as Trustee. A short and non-exhaustive list of Trustee duties are:

Marshalling assets: gathering all of your assets together
Acquire a tax ID number, if the trust does not already have one
Inventory and appraise (formally or informally) trust asset
Send legally required notices to trust beneficiaries within a certain timeframe
Keep the trust beneficiaries informed of trust assets
Invest trust assets as a “prudent person” would
Keep “accountings” (e.g. values, income and expenses) of trust assets and provide reports to beneficiaries no less than annually
Prepare and file trust tax returns (or, preferably, work with a qualified CPA to prepare and file them)
Make distributions as required in the Trustee agreement
When the trust is fully administered, close the trust

As you can see, there is a lot for a Trustee to do and to do correctly. The top two recommendations I make to Trustees are: (1) keep meticulous records on everything you do and why you did it, and (2) enlist the assistance of professionals, such as an Attorney, Financial Advisor, and CPA, to make sure you are properly administering the trust and the assets owned by it.

When choosing a Trustee, you should choose someone you trust and who is either capable of handling the above items on his/her own, or is willing to work with professionals who can guide him/her through the process. Given what is involved, it is not uncommon for families to choose a professional Trustee, such as a bank or trust company.

In closing, I would recommend that you bookmark this post. Or, better yet, keep it yourself and share it to anyone who is named as a Trustee in your plan or who may be named in someone else’s plan (friend or family member). It will be a good starting point if you (or they) are called upon to act as Trustee.

And remember, if you ever have a questions, please contact me.

Estate Planning Pitfall – Not Having A Stand-alone HIPAA Authorization

November 5, 2011 / Michael

The research is clear – we are living longer and needing more medical care as a result. This makes the Power of Attorney for Healthcare (also referred to as a Patient Advocate Designation) a critical component of any well-drafted, comprehensive estate plan.

But did you know that there is another healthcare-related document that can be critically important to managing your finances when you are unable to do so yourself . . . a document that many estate plans lack? It’s a stand-alone HIPAA authorization and it can help ensure a smooth transition for your financial agent(s) and help your family stay out of court.

You see, the trusted family, friends, or financial institutions that many individuals choose to manage their financial affairs if they are incapacitated are not necessarily the same ones chosen to make healthcare decisions. A comprehensive estate plan will use Financial Powers of Attorney and Trusts to help ensure your finances can be handled by those you trust most if your are unable to manage them yourself.

Many times the authority given to others in Financial Powers of Attorney or Trusts do not become “effective” until you are incapacitated or otherwise unable to manage your financial affairs. A physician is usually involved in making the determination of incapacity and signing the necessary certifications so that your financial agents can begin managing your financial affairs.

Traditional planning and the Health Insurance Portability and Accountability Act (HIPAA) can throw a wrench into the situation. How? HIPAA restricts access to your medical records to those who you authorize. Because your financial agents may not be the same as your healthcare agents, any HIPAA authorizing language in your Healthcare Power of Attorney will not cover them (you do have HIPAA authorizations in your Healthcare Power of Attorney, right?). Without that authorization, the physician most likely will not sign off on the necessary documentation and your family (and agents) could end up having to go to court to move forward. This would likely lead to costs and delays you no doubt wanted to avoid.

That’s where the stand-alone HIPAA authorization comes in. It allows you to name individuals who can have access to your medical records without giving them authority to make medical decisions. Certainly your healthcare agents would be included, but you should also consider including your financial agents and trustees (if you have a trust). Doing so, will help ensure that the transition of authority can be a smooth one and your estate plan works when it is needed most.

Michael Lichterman is an estate planning and business planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™. This goes beyond merely planning for finances – it’s about who your are and what’s important to you. He focuses on estate and asset protection planning for the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, family owned businesses and pet planning. He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Why NOT To Use Joint Accounts As Your Estate Plan

October 2, 2011 / Michael

You may remember that I wrote about some of the downsides to jointly owning assets in this previous blog post. Well, as with all good stories, that wasn’t the end of it and the topic continues to come up. Forbes.com had a recent article entitled “Top 5 Reasons to Beware of Joint Ownership Between Generations.”

Rather than reproducing the article, I will touch on the high points . . . please read the entire article. Unlike my previous post covering a wide view of why not to use joint asset ownership as an estate plan, this article focuses on the top reasons related to joint ownership among different family generations. I’ve heard more than one parent who shared with me that they were told to “just add your child to your bank accounts, financial accounts, and home to assist with financial issues and plan your estate.”

Here are the reasons the Forbes article gives for why that is a no substitute for proper estate planning:

The assets are subject to the child’s creditors;
The assets are subject to the child’s ex-spouse in cases of divorce;
The assets are subject to “borrowing” by the child. Borrowing is in quotes to signify that this is a case where the child, because he or she is equal owner on the account with mom or dad, uses the account for their own purposes – promising (or not promising) to pay it back.
The child who is on the accounts with mom or dad gets all of those assets when the parents pass away. That’s right . . . all of it! Much to the chagrin of their siblings, other family members, and maybe even charities that mom or dad supported.
Many times #4 can lead to family infighting.

Another critical factor making this a big “no no” in many situations is that by owning the assets jointly with their children, the parents are giving up control and risking complications that many would never think of happening.

As the article points out – it is better to have a comprehensive estate plan in place and to work with a Michigan attorney who focuses on estate planning. A good estate plan allows you to keep control of your “stuff,” receive assistance when needed, avoid probate court after death, and eliminate questions about your true intentions.

Call us at 616-827-7596 to take that important first step. The first step is always the hardest, and yet it leads to the reward of added peace of mind.

Aging Issues and Estate Plans

July 24, 2011 / Michael

As a Grand Rapids, Michigan estate planning attorney, I take special note of conversations in the media about estate planning. That’s how I ran across this recent Grand Rapids Press article entitled “Aging Issues Can Imperil Retirement.” I believe the overall emphasis of the article is important for two reasons: (1) it points out that everyone needs an estate plan; and (2) trusts are not just for the financially wealthy or for minimizing estate taxes. After a general discussion, the article lists specific, basic guidelines that can help protect seniors and their families from the consequences of declining mental health.

You’ll notice that #1 on the list is to prepare an estate plan. I couldn’t agree more. Why? No, it’s not just because I’m an estate planning attorney. It’s because everyone has an estate – either you can say how you want it handled by working with an estate planning attorney to put an estate plan in place, or you can let the Michigan government’s one-size-fits-all plan control what happen. I think it is important to quickly note the article’s mention of having a living will. As I previously wrote about in this post, living wills are not legal documents in Michigan. So make sure you have a Michigan healthcare power of attorney and patient advocate designation.

You’ll notice that having a living trust is #3 on the list. I’m happy to see that it made the list. Why? Because there are so many misconceptions about trusts . . . the biggest being that you have to be wealthy to need one or benefit from one. I assure you that most of the great families who work with me to create a trust plan for their family are not wealthy by any means. To give you some examples of “everyday people” reasons, read this previous post. I’m also pleased to see that the article discusses the benefits of a trust while you are still alive. There is a big misconception “out there” that trusts are only for when you pass away. Not so – there are huge benefits to having a trust while you are living. I will add that in my experience the fees are not usually the 2-3% stated in the article – in my experience that is a high number.

And finally I think it should be emphasized that these issues are too important to do it yourself. Here in West Michigan we have a very strong work ethic and like to “take the bull by the horns.” I know . . . I’m that way too. That’s why we have so many successful individuals and companies. However, this is not an area where you should do it yourself – there is too much to loose. To get some real world examples you can read my previous posts on the topic by clicking here, here and here.

After reading the article and this post, why wouldn’t you call us to make sure you have a plan that is uniquely you and provides for you and your family during life and after life? Call us at 616-827-7596 and mention this blog post for a special treat.

You Pay For What You Get

January 30, 2011 / Michael

“You get what you pay for,” is a phrase that we’ve all heard so much it is has become almost a cliche. What I’ve come to realize is that, although “you get what you pay for” may not be true in all cases, “you pay for what you get” seems to be true in all cases. Whether the “cost” is money, like we typically think, or something intangible such as lost time, lost opportunity, worry, regret or pain.

You may have read my post about the Honda, the big screen and estate planning. The idea being that we “pay” (money, time, emotions, etc.) for something based on the perceived value it has to us. I was reminded of this when I talked recently with a nice gentleman. At one point he said, “that’s more than I’m willing to pay.” It doesn’t matter the context – estate planning or business planning – there’s a lot going on behind the scenes in that statement.

It could be a reflection of lack of concern, lack of understanding how things work (estate planning or business planning), not fully understanding the situation, or valuing other things higher than the estate planning or business planning being considered. Ultimately, I think it is a combination of all of these (and more), although I see the value comparison being the deciding factor in most situations.

I’m not saying any decision is good, bad or indifferent. I think it is good for us to understand how we make purchase decisions and to not forget all the non-monetary considerations that come into play and how they, ultimately, lead us to the decision we make.

How do you make a decision between two or more “purchases”? Maybe it’s getting an iPad versus purchasing more life insurance, maybe it’s leasing a new car versus purchasing a new one, or getting a “discount” haircut versus going to a salon. When you stop and think about the monetary and non-monetary considerations, how do YOU make your choices? I would love to hear what you think of this!

A Week Dedicated to Estate Planning

October 17, 2010 / Michael

Did you know that this week is Estate Planning Awareness week in Michigan and across the nation? Well, it is. And you can read the Michigan proclamation by clicking here. Interestingly enough, Governor Granholm left one important estate planning document out of her proclamation…the durable power of attorney. Don’t forget that one!

Estate Planning is one of the most overlooked areas of personal financial management. It is estimated that over 120 million Americans do not have up-to-date estate plans to protect their families in the event of sickness, accidents, or untimely death (yikes!). This costs the working classes and the more affluent wasted dollars and hours of hardship each year that can be greatly minimized with action and advanced planning.

Th reasons for a week dedicated to estate planning awareness are many and varied. Some of the reasons given in the legislation that put the week in place are:

Estate planning can greatly assist Americans in preserving assets built over a lifetime for the benefit of their family, heirs, or charities;
Estate planning encourages timely decisions about the method of holding title to certain assets, the designation of beneficiaries, and the possible transfer of assets during life;
Many Americans are unaware that a lack of estate planning and “financial illiteracy” may cause their assets to be disposed of to unintended people by default through the complex process of probate;
Careful planning can prevent family members or other beneficiaries from being subjected to complex legal and administrative processes requiring significant expenditure of time, and greatly reduce confusion or even animosity among family members or other heirs upon the death of a loved one

And parents with minor children must not forget that estate planning is the way to make sure you’ve legally documented who you want to care for your children if you pass away or are incapacitated, so that they don’t end up in the arms of strangers or Child Protective Services!

If you haven’t put an plan in place for your family (young, older or in between), why not? I encourage you to show your family how much your care about them by putting a plan in place before it’s too late. If you don’t, the State of Michigan has a “one size fits all” plan for you.

And if you have put an estate plan in place for your family, when was it last updated? Your life, the law and what you have are constantly changing . . . your plan needs to change along with it. What happens if you don’t? It’s difficult to say until something happens. However, there is a good chance it will fail to accomplish what you wanted if it isn’t kept updated, and once something happens, it’s too late!

Consider talking with your family, friends and others you care about to share with them the importance of planning and keeping your plan updated. National Estate Planning Week is a great way to start talking about the subject. If you, your family or friends have any questions, call us at 616-827-7596 or contact us here.

Michael Lichterman is an estate planning attorney who helps families and business owners create a lasting legacy by planning for their Whole Family Wealth™. This goes beyond merely planning for finances – it’s about who your are and what’s important to you. He focuses on planning for the “experienced” generation, the “sandwich generation” (caring for parents and children), doctors/physicians, nurses, lawyers, dentists, professionals with minor children, and family owned business succession – and he is privileged to do so from a Christian perspective. He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

The Shocking Truth About Michigan Living Wills

October 13, 2010 / Michael

The first shocking truth is this: a Living Will is not a Will at all. A Will is a document that, when approved by the probate court, determines how and to whom your “stuff” is distributed to when you pass away. A Living Will is a document that instructs physicians and others to withhold or withdraw life-sustaining treatment when the patient’s death is certain. It is called a “living” will simply because the declaration is made by a person when he or she is still alive and able to make medical decisions.

The second, and bigger, shocking truth is this: Living Wills have no explicit legal support in Michigan. That’s right, a Living Will is not a “legal document” in Michigan and is not required to be followed. Unlike many states, Michigan has no legislation and there are no cases (that I can find) specifically authorizing living wills or requiring that they be followed. Surprised? Quite honestly, I was too when I first found out.

So what can you do if you want to express your wishes as to end-of-life decisions? Michigan does have a Durable Power of Attorney and Patient Advocate Statute that allows you to designate who you want making healthcare decisions if you are unable to participate in your healthcare decisions. I suggest including living will-like provisions in your patient advocate designation as the surest way to have them recognized. If you absolutely want a document titled “living will,” then make sure to have a patient advocate designation as well and explicitly incorporate the living will by reference in your patient advocate designation.

Choosing someone to make medical decisions on your behalf when you are unable is one of the most important decisions you can make. Because of how important this decision is, why wouldn’t you discuss your wishes and options with an attorney who specializes in estate planning? Take the step of turning your wishes into directives by calling us at 616-827-7596 or contacting us here.

Are You Getting REAL Values-Based Planning or an Impostor?

August 11, 2010 / Michael

This is the third in a series of posts on Story Based Planning written by my colleague and mentor, Scott Farnsworth. In this post Scott tackles TRUE values-based planning and what has become a substitute that “poses” as values-based planning . . . questionnaire based planning. Here is what Scott has to say:

In an earlier post I wrote that “values-based planning” is founded on the notion that each client has a personal set of values that should be ascertained early in the planning process and then used to fashion a financial plan or estate plan unique to that client. Most enlightened planners today would concur that financial and estate plans based on client values are far superior to the “one-size-fits-all” cookie-cutter plans that many of us grew up doing.

The question with regard to values-based planning is not whether we should create plans based on client values. The answer to that one is duh-obvious: Yes. The issue is not WHETHER we should do values-based planning, but rather HOW to do it so that it actually works.

In other words, how do we respectfully and accurately ascertain each client’s unique and deeply-held values upon which their planning will be based? What methodology will allow us – and our clients – to look into their hearts, to see there what truly matters, and to then discern how to create a plan with them based on what we have discovered?

Unfortunately, the widely-heralded “values-based planning revolution” has been in my view a case of one step forward, two steps back. This is largely because in nearly every instance what started out to be “values-based planning” quickly morphed into what I call “questionnaire-based planning.” Indeed, with a few notable exceptions, virtually every so-called “values-based” approach is designed to be implemented by means of a cleverly designed, carefully worded questionnaire.

I think that is a tragic turn of events, and here’s why:

A. Questionnaires are blunt instruments that deliver cut-and-dried, categorical answers. As a result, they seduce planners into seeing clients as cut and dried and categorical. But that’s not the way we humans are, especially when we drill down to a values level. We are not pegs to be pushed into differently shaped holes, or colored bobbles to be sorted into different boxes. We are each unique. We are full of nuances, contradictions, uncertainties, and places where the lines are blurred. We don’t fit into four or five neat categories, as most questionnaires require.

Some would argue that being able to offer clients a plan based on which one of several categories they fall into, as determined by their questionnaire responses, is substantially better than the old “one-size-fits-all” method of planning. While it may be an improvement, it is not true values-based planning. Offering clients a choice of cookie cutters is still cookie-cutter planning.

B. Questionnaires have built-in biases, which are based on the assumptions and prejudices of their creators. Regardless of whether these biases are accidental or intentional, a biased questionnaire skews the results away from the client’s true values. When you start with untrue assumptions, you always end up with incorrect conclusions.

I have seen long, beautiful, and well-worded questionnaires that were supposed to assess a client’s values and direct the planner to the type of plan the client needed. Oddly, it seemed that nearly everyone using that questionnaire was steered toward essentially the same plan, one that favored the aims and products promoted by the questionnaire designer. It seems to me that when everyone gets the same answer, maybe the questionnaire is asking the wrong questions.

C. Questionnaires can be “gamed” by clever clients. The process of answering questions in a questionnaire invites clients to consider not just their answers, but the impact of their answers on the planner and the planning process. “Will this answer raise or lower the fee?” “Will this answer make me seem more wealthy or less wealthy?” “Will this answer cast me in a negative light?” “Will I appear miserly, judgmental, prejudiced, immature, or short-sighted if I answer that way?” “Will I be exposing my weaknesses, and will that allow her to take advantage of me in some way?”

Human nature being what it is, the odds are high that clients’ responses will be less than candid and unguarded. Consequently, there is a high probability that questionnaire answers will be scrubbed, distorted, shaded, or flat-out wrong. This makes the results of a questionnaire unreliable as a basis for serious values-based planning.

D. Questionnaires lead to dull, inattentive planners. Questionnaire-based planning doesn’t require planners to listen deeply and attentively to clients, to ask insightful questions, or to employ judgment and wisdom to discern how to weave the client’s life-lessons into the plan. The “correct answers” or the client’s “categories” just “magically” pop out from the responses. Yeah, right.

True values discovery requires careful and attentive listening. Each client and the stories they tell are alive with insight and meaning. They are full of clues and pieces of answers. Real people living real lives are like that. The right answers don’t just pop out; they have to be teased out and then pieced together like a jigsaw puzzle. But when you make a commitment to discover for yourself – and for the client – a clear and complete understanding of what’s really in their heart, their deepest purposes for planning, you discover that the results are unquestionably worth the effort.

E. Questionnaires don’t lead to values-based planning. Questionnaire-based planning is neat, clean, analytical, and easy, but it is incapable of drilling all the way down to the values-bearing strata deep inside the client. No matter how cleverly worded, a questionnaire can never respectfully and accurately ascertain each client’s uniquely personal values. The results are too shallow and mechanical. The intention may be right but the methodology is wrong. Thus, whenever planning becomes questionnaire-based, it ceases to be truly values-based. I call it “faux values-based planning.”

Please understand that I believe there is an appropriate role for questionnaires in the financial planning and estate planning process, which is to help gather data. I have no problem using questionnaires as fact finders. They just don’t work to discover and discern significant client values.

So What?

“So what’s the harm,” you may ask, “in doing questionnaire-based planning? It’s definitely a lot better than the old way we used to do it.”

The most significant harm is that when financial planners and estate planners – even smart, sincere, and well-intentioned planners – think they are doing values-based planning but are only doing faux values-based planning, they stop seeking the real thing. They become enamored with zirconium and fail to find the acres of diamonds just over the next hill. They take the shortcut and never realize they just missed the best part of the journey. As a result, they rob themselves and their clients of the magnificent experience of true values-based planning.

Good is the enemy of great.

The moment earnest planners apply the label “values-based planning” to something that is not and once they start to believe they are doing “values-based planning,” even though it is really only the “faux” variety, they lose the sense of urgency to discover the real thing and are unable to see the need to do more. Once they get locked in, it is nearly impossible to unlock them. As a wise person once said in another context, “the problem is not what they don’t know. It’s what they do know that just ain’t so.”

Values on the cheap vs. paying the price

While questionnaire-based planning may appear neat, clean, analytical, and easy, it is really only values-based planning on the cheap. The real process of values discovery – like virtually every other authentically meaningful human endeavor such as nurturing a fulfilling marriage, raising independent children, growing a beautiful garden, or building a success business – can be disorderly, messy, intuitive, and sometimes challenging. It requires real work. It requires that we pay the price to come to know, really know, our clients. It cannot be achieved with clever techniques.

The Solution

To move into the beautiful new world of true values-based planning, the solution is not to try to come up with a more artful questionnaire. The solution is to recognize that their stories — the oldest and most natural form of human communication – are rich and ripe with the unvarnished truth about our clients’ values. We just need to ask the right questions and then listen, really listen.

I have found that the best way to genuinely understand our clients and their values is to ask them thoughtful and insightful story-leading questions in an appropriate setting and then settle back and listen to their answers with all the love and attention and encouragement we can muster. I have learned that who they are and what they deeply value are woven into the stories they tell and can be discovered by a caring advisor. That is the essence of what I call “Story-based Planning in a Thinking Environment.”

I’m happy to say that I use a questionnaire mostly for fact finding, not for developing a values-based plan. I make it a point in every Peace of Mind Planning Session or Whole Family Wealth™ Planning Session to purposely set the questionnaire aside and spend a significant amount of time listen to my clients’ stories.

Scott Farnsworth, J.D., CFP is an attorney and Certified Planner with more than 30 year in the estate, business, and financial planning fields. He is the CEO of SunBridge, Inc. and the founder of the SunBridge Legacy Network. He is a nationally recognized author and expert on practical, holistic, family-friendly planning. Scott was recently named one of Financial Advisor Magazine’s ‘Innovators of the Year.

Michael Lichterman is an attorney specializing in estate planning and helping provide peace of mind to families and businesses throughout Grand Rapids and West Michigan. He specializes in Whole Family Wealth™ planning for professionals with minor children, doctors/physicians, nurses, lawyers, and the “sandwich generation” (caring for parents and children) – and does so from a Christian perspective. He takes the “counselor” part of attorney and counselor at law very seriously, and enjoys creating life long relationships with his clients – many of which have become great friends.

Planning For Your Values – Story-Based Planning (Part 2)

August 8, 2010 / Michael

Your values are important to you, otherwise you wouldn’t hold them as values. So why don’t we plan to pass on our values as much as we plan to pass on our retirement account, our cars and other assets we have? It’s a great question and one that is tackled by my colleague and mentor Scott Farnsworth in the second in a series on Story-Based Planning. You can read the first post here. Here is what Scott has to say:

For at least the last decade, the hottest buzzword in the planning professions has been “values-based.” You couldn’t turn around without running into “values-based” selling, financial planning, estate planning, you name it. But what in the world is “values-based planning” anyway?

Looking under the label and behind the question is helpful, I believe. In truth, all planning is based on someone’s values, so the question behind the question is whose values? To acknowledge our professions’ dirty little secret, the truth of the matter is that in the “pre-values-based planning era” nearly all planning was based on the professional’s values or, at best, on the values we assumed the clients held.

If the professional was selling life insurance, lo and behold, one of the key values was “tax-free liquidity at death.” If the professional was selling living trusts, it was generally assumed the clients valued “avoiding probate,” “reducing estate taxes,” and “distributing the assets” in some orderly fashion, usually in a way consistent with the drafter’s trust templates. If the professional was selling investments, every financial plan was based on the premise that the client wanted to pay for his kids’ college and then retire comfortably a few years before he turned 65.

Not surprisingly, every plan a planner created looked strikingly similar to every other plan he created: they were all based on the planner’s values and assumptions, not the client’s.

What the term “values-based planning” was trying to communicate was the notion that each client has a personal set of values that ought to be ascertained early on in the planning process and then used to fashion a financial plan or estate plan that was unique – truly unique – to that client. The real question then became, for those planners actually trying to create plans based on client values, “how do you ascertain the client’s values?” At least now the issue was correctly framed.

This breakthrough led to the advent of what I call “questionnaire-based planning.” Client values, the planning professions assume, can be ascertained through a cleverly designed multi-page questionnaire. But while “questionnaire-based planning” is far better than its predecessors, it still fails in its primary objective: to develop for the planner and the client a clear understanding of what’s in the client’s heart – the client’s deepest purposes for planning. For that you need story-based planning.

In the next installment I’ll outline why “questionnaire-based planning” is merely masquerading as genuine values-based planning. It looks good on the outside, but inside it has no real power to get to the heart of the matter.

To be continued.

“Oh, We Didn’t Use an Attorney…We Bought It Online”

July 28, 2010 / Michael

Because I regular comment about the risks and dangers of online estate planning documents, I’ll keep this post short. The words above were heard by a banker friend of mine. The context of the statement is just to good to not write a post about it.

The customers have a very elderly aunt (in her 90s) for whom they have power of attorney. They brought the document into the bank because aunt needed to them to get into her safe deposit box. So the banker sends the power of attorney to the bank’s legal department. The answer back – “no.” Why? Because the power of attorney made a very general statement about financial powers and did not include the ability to access a safe deposit box. The banker’s suggestion to them was to go back to the attorney who drafted it and have it changed. They’re response was, “oh, we didn’t use an attorney . . . we bought it online.” So, they had to go get elderly aunt who lives almost an hour away, bring her into the bank on a different day, and have her authorize drilling the safe deposit box (she had lost the keys). Were they upset? You bet they were! But it was of their own doing.

And they were lucky! How? Because if aunt hadn’t been competent, they would have had to go to court to get the authorization.

Almost every attorney I know who specializes in estate planning includes a provision in the power of attorney to cover the above example. Why? Because it’s what we do. We deal with it on a daily basis. Although not having the one provision is not the point, we know that more and more financial institutions are requiring specific authority for different transactions such as accessing a safe deposit box.

Do you have a similar story? Email me or share it in the comments below. I always enjoy hearing from my blog readers.

Motley Fool Tries to Explain a Trust

July 25, 2010 / Michael

You know me. I’m not a fan of folks giving advice in an area about which they’re not qualified. And as long as people would take it for what it’s worth and seek out the advice of professionals in the area, I’m ok with it. But many do not. Many folks hear or read advice from a big name (e.g., Dave Ramsey) and take it as the best advice to follow, rather than just the opinion of someone who is not a professional in the area.

So, what does that have to do with the Motley Fool? It is exactly what they did in their “Ask the Fool” section in the Sunday, July 25, 2010 business section of the Grand Rapids Press. First, I want to say that I’m a big fan of the Motley Fool for financial advice. Much like I’m a fan of Dave Ramsey’s advice for getting out of debt. However, when they decide to go “off the farm” and delve into an area that is not their expertise, my enthusiasm for their advice quickly wanes.

The question asked in the “Ask the Fool” section was: What’s a trust? Brevity of the response aside, it mis-stated part of the concept and gave some advice that is far short of ideal. They stated that a trust is a legal tool whereby someone gives control of property to a person or an institution. Ok, close enough in my book. I would say it is a contract/agreement between the creator of the trust and the trustee agreeing that the trustee will hold title/ownership of the assets for the benefit of the beneficiary(ies). Then they go on to say that the beneficiary owns the property but the trustee controls it. I beg to differ. Who the “owner” is depends on the terms of the trust. Maybe the beneficiaries are the owner, maybe not. Yet they just make the blanket statement and leave it at that.

Some will say, “Mike, you’re really splitting hairs here.” Maybe I am, maybe I’m not. So surely they must have advised the person asking the question to talk to an estate planning attorney, right? Nope! Their response was to “learn more from a financial adviser!” Yep, that’s right. A financial adviser. I guess that shouldn’t be a surprise since Motley Fool is known for giving sound financial advice. Yet here they are (incorrectly) answering a question about a “legal tool” (their words) and then directing folks to a financial adviser rather than an estate planning attorney. Would they suggest a reader talk to an estate planning attorney about the best long-term investment to get the reader to retirement? Of course not!

So there you have it. Again, a well respected person/group highly qualified in one area can’t help but give advice on a topic about which they are not professionals. And then they direct readers to someone who, although qualified in the financial arena, is also not qualified to give proper advice.

What do you think? Am I blowing these issues out of proportion? Should these individuals and institutions be held accountable for the “off the farm” advice they give and the way it could harm the legacy of families? I would love to hear your thoughts . . . even if it is to tell me I’m “off the farm.”

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