Consider this situation: Clients come into your office and explain that, five years earlier, they met with and paid an attorney to formulate a long-term care and asset protection plan in the pre-need stage.

After completing your review of their existing plan, it is apparent that the clients received incorrect legal advice and have a plan in place that is not going to accomplish their goals of protecting their assets. For example, they may present to you an irrevocable trust, which contains provisions that deem their assets available for eligibility purposes, the irrevocable trust was not properly funded, the clients were supposed to receive income from the irrevocable trust and never received the income, or a variety of other possible pre-planning issues.

As the practice of elder law and the benefits an elder law attorney can offer families are becoming more well known, we see an increasing number of clients seeking out legal advice to plan for the rising costs of long-term care before it becomes an issue.

For our practices, this is great! We have many more options and planning techniques in the pre-need stage that can be used to help our clients ensure that their hard-earned assets are protected for their family members, compared to waiting until the last minute. Unfortunately, clients may unknowingly seek this planning from an attorney who is not as well versed in this complex and ever-changing area of law as is needed for this planning.

Elder Law Section members have devoted themselves to this discipline, taken advantage of the tools and resources available to members, and engaged in regular training to stay informed on the latest updates to the Program Operations Manual System (POMS), Wisconsin’s Medicaid Eligibility Handbook (MEH), fair hearing decisions, and recently passed legislation. This allows section members to give clients the best and most accurate advice possible. We know the dangers of “dabbling” in public benefit law and long-term care planning, which often results in more damage than benefit to the client in the long run.

The Unavoidable Tough Conversation

What should lawyers do for the clients who had the foresight to obtain legal advice and educate themselves about their long-term care planning options, but received a defective plan? How do we inform these clients that their current plan was not properly drafted for their goals?

Some may consider this conversation to be the toughest of the “tough conversations” elder law attorneys face in their practices. These conversations put us in a position in which we are delivering bad news, critiquing a fellow attorney’s work product, attempting to maintain the client’s trust in the legal community, and at the same time trying to explain any planning options available to the client, which would require engaging us for additional planning.

This conversation is unavoidable – and we have an obligation to explain to clients the issues with their plan and what options remain to accomplish the client’s goals.

Learning How to Deliver Bad News: A Look at Another Profession

How to have tough conversations like this is not a skill taught in law school. Perhaps we can look to the medical and health care professions. Similar to the legal profession, in the medical profession bad news is frequently delivered in emotional environments, the news contains a complex subject matter, and the news has to include a defense of their profession’s actions, knowledge, and training.

An article published by the American Family Physician notes that “patients generally desire frank and empathetic disclosure of a terminal diagnosis or other bad news.”¹ Medical professionals are trained to use the following techniques to enhance their bedside manner when delivering bad news to their patients:

• Advance preparation;

• Build a therapeutic environment and relationship;

• Communicate well;

• Deal with and address patient and family reactions; and

• Encourage and validate emotions.²

These techniques, which can be boiled down to the acronym ABCDE, transcend the medical and health care professions and can be applied to the legal field when an attorney has to conduct a tough conversation – such as informing clients that their long-term care asset-protection plan is not going to accomplish their goals.

Advance Preparation

Similar to a medical professional who is trained to review a patient’s medical records and chart before delivering bad news, an attorney who can plan for the conversation must make time to review and scrutinize the existing plan to identify the issues. During preparation, the attorney should refamiliarize herself with the applicable Code of Federal Regulations, MEH provisions, fair hearing decisions, and perhaps the relevant source of the law’s legislative history³ on the particular aspect of the planning that has negatively affected the client’s goals.

Being able to prepare for a tough conversation implies that the attorney can review the client’s plan before the meeting at which the conversation will take place, which we know is not always the case. It may be necessary to schedule a follow-up meeting with the client if your first review of the existing plan is done in the client’s presence. The proper preparation will help ensure all necessary information is analyzed and the attorney can have a thorough and thoughtful conversation with the client.

Build a Therapeutic Environment and Relationship

Compared to medical professionals, who often have some sort of a recurring relationship with their patients, attorneys meeting a new client are generally not going to have the luxury of knowing the client’s personality and how he will best receive bad news. However, within the attorney’s office and during these meetings, an attorney can create a more comfortable environment by providing “creature comforts” such as a friendly welcome, beverages and snacks on the table, and a box of tissues within reach in the conference room.

Additionally, the attorney can provide comfort by being careful with her tone, consciously choosing more empathetic phrases when delivering bad news. A comfortable environment can help enhance the client’s trust and comfort level with that attorney and help the client better understand and comprehend the difficult news.

Communicate Well

Communicating well means that at the end of the conversation the client has a good understanding of what is wrong with the existing plan and its future implications. To communicate this, the lawyer should avoid legalese and explain the issues in plain language to the extent possible. It may be a good idea to provide a document the client can use to follow along while the attorney explains the issues.

For example, the lawyer could give the client supporting materials, such as copies of the existing plan with the problem provisions highlighted, relevant MEH provisions, if applicable, or a summary of the applicable rules. Pointing out to the client the precise language that is causing an issue will help the client identify for himself or herself what was drafted incorrectly.

Good communication will help the client feel more comfortable with the news and advice the lawyer provides.

Deal with Client and Family Reactions

Many attorneys are uncomfortable handling the reactions of clients and their families. We are not trained therapists or counselors when it comes to professionally dealing with others’ emotions. Receiving bad news can invoke many different emotions, which manifest differently in everyone.

Anticipate that the client may need some time, moments of silence, and comforting to comprehend the information that has just been shared before a more productive conversation can follow. Keep in mind that the client has likely waited five years or more in anticipation of achieving asset protection, and now he or she is hearing that the wait did not achieve their goal – such news is difficult to digest.

In these moments, displays of empathy to show you identify with the client’s emotions can provide comfort to the client and family members. Apologizing to the client, even though it is not your fault (“I’m sorry this happened to you”), or comments such as, “I understand your frustration” or “I would be upset too if I were in your shoes” might help maintain the client’s trust and comfort.

Additionally, medical professionals are encouraged to avoid assigning blame, criticizing their colleagues, or defending the care provided. Lawyers should keep in mind that all attorneys are members of the same professional organization, the State Bar of Wisconsin, which is designed to build up the reputation of the profession, rather than fuel the negative perceptions of attorneys that may be present in the public eye.

While a lawyer should not defend the bad advice or poorly drafted work product of the former attorney, neither is it helpful or professional to disparage the former attorney. You cannot be sure which facts and goals were presented to that attorney and which circumstances existed then.

Instead, empathize with the client, explain the issues in the plan, and encourage the client to reach out to the former attorney directly if the client feels the need to address the error. By empathizing with the client and validating the client’s frustration, but not disparaging the former attorney, you can handle the situation in a professional manner that will show the client your high level of professionalism and compassion.

Encourage and Validate Emotions

This tip encourages medical professionals to offer realistic hope and options.After receiving bad news, clients may be hesitant to trust another attorney. Offering the clients realistic options about what can be done to achieve their planning goals is going to put them more at ease and rebuild their trust in the legal profession. Providing some handouts, as described under “Communicate Well” above, may also help alleviate mistrust and increase confidence in the new plan.

Once the lawyer has answered all questions about the existing planning and calmed any emotional reactions, the attorney should continue through her typical initial client discussion of the client’s planning goals, income, and assets and gauge how quickly obtaining eligibility for long-term care benefits is needed. There are often creative options lawyers can use to preserve assets, even in the crisis-planning stage. Clients likely will appreciate your ability to offer them hope and options.

Handle the Conversations with Patience and Empathy

Through taking a page from the medical and health care professions’ textbook on how to deliver bad news, lawyers can enhance their “conference room” manner and better conduct these tough conversations with their own clients. We can better prepare ourselves for conducting these difficult conversations with patience and empathy, while still providing the knowledge and information necessary to maintain the client’s faith in our personal practices and the legal profession.

Endnotes

¹ Gregg K. Vandekieft, M.D., Breaking Bad News, Am. Fam. Physician 64(12):1975-79 (Dec. 15, 2001).

² Id.

³ Fortunately, the sources of public benefit and Medicaid law’s legislative history archives are fairly easy to navigate. The Medicaid Eligibility Handbook online portal contains previous drafts of each of the handbook’s provisions dating back to April 2, 2010. Earlier editions of the handbook can be requested directly from the Wisconsin Department of Health Services. See also the Code of Federal Regulations Archive and the Wisconsin Statutes Legislative History Archive.