Let’s start with the assumption that you want to have a multicultural law practice with a focus on estate planning and Medicaid planning – and you want to work with clients and staff who are diverse. How are you going to move forward with those objectives?

Is being multicultural enough?

Is it possible to complete the necessary estate planning forms and Medicaid applications with a good understanding of the client’s current financial status and plans regarding the person’s finances? Or do best practices require that we do more – that we ask more questions? Does an attorney who handles an estate planning case or a Medicaid planning case need to know the racial or ethnic history of the client? Is a client’s history relevant? Why?

What is Multicultural Competence?

Paul Kivel, a social justice educator, activist and writer, the author of numerous books, including Uprooting Racism: How White People Can Work for Racial Justice, has this to say:

We are all culturally competent in our own culture. We know the language, the nuances, and the assumptions about how the world is defined and organized. We know where there are disagreements and differences and generally what the rules are for solving problems. Most of know how to get around in our own cultural neighborhood. Multicultural competence is fluency in more than one culture, in whichever cultures are part of your surroundings. Learning to be sensitive to cultural expressions of another group is not difficult but does require time and energy.¹

Although I practiced estate planning and long-term care planning for close to three decades, I know I did not consistently ask questions about a client’s racial or ethnic background. I made assumptions about how clients would want to plan for a secure financial future for themselves and any family or friends the client hoped to support.

Consciously or unconsciously, I used my own life experiences as the basis for my assumptions. I came from a white working-class family and grew up in Madison. My Scandinavian ancestors settled in the Midwest in the early 1800s, became property owners, served in the military, and received benefits from multiple federal programs that were only available to white property owners and/or veterans (VA benefits, Social Security death benefits, farm subsidies, FHA approved mortgages, etc.).²

As a result, my inquiry into my clients’ past didn’t go much further than “What do you currently own or earn?” “Are you expecting an inheritance?” “Have you or your spouse ever served in the military?” and “Have you received an inheritance?”

I tried to be fair and equal in my representation by using the same set of questions for everyone, and ultimately, creating very similar plans for everyone.

Now, I’m not so sure my approach was fair or equitable, especially for my nonwhite clients.

After 29 Years of Practice, I Have Some Regrets

I did have a multicultural client base, but I admit it rarely occurred to me to ask more questions about the clients’ background or immigration status. I assumed that those “stories” would be interesting but not necessarily relevant to the service I was going to provide.

Recently, I asked colleagues who practice estate planning and Medicaid planning law if they typically inquire about their clients’ racial or ethnic background. The answers varied from, “I always ask” to “I never ask and I simply let the client know that I’m willing to draft their documents to conform to their wishes and assume that they’ll tell me about any special circumstances I should consider.”

I have some regrets about how, in the past, I failed to provide legal services based on a full understanding of my clients’ backgrounds. I have learned that knowing the immigration status and history of a client can be central to the planning you will recommend.

Beyond that, the advocacy work you can do for older people and persons with disabilities can and should be affected by your cultural competence.

Knowing Their History Makes a Difference

The history I’m referring to is the racial and ethnic history of the client and their parents. The history of race relations in the community where the client lives now or plans to live in the future can also affect the client’s planning goals. Other aspects of the client’s history that could affect your planning services and advice is the history of their ability to access health care services and their ability to access health care or home care services in the future.

Of course, some of a client’s history may seem obvious based on their assets and current or past employment. However, information about how a client acquired their education and wealth may not be obvious and could affect that client’s estate planning and/or Medicaid planning goals.

In addition, your client’s decisions about who will act as their agent or trustee, crucial decisions in any estate plan or long-term care plan, could be affected by the client’s family’s customs and beliefs related to health care and financial decision making.

I’ll offer three examples to illustrate these points.

Example #1

If your client was born in a refugee camp in Thailand but is now a 40-year-old married doctor with a husband and three children, what sort of estate plan would you recommend for her family?

Let’s say you learn that her parents are illiterate, have only been employed in custodial jobs that don’t require reading or writing, and they live in subsidized housing. Your client says she wants to be sure the plan provides for the financial security of both her children and parents.

Their estate plan will have to be based on a solid understanding of family history and cultural differences. You can't assume that they'll want to plan for parents to reside in a nursing home because in the Hmong culture, elderly family members are usually cared for in the homes of their children or grandchildren and very rarely reside in a residential care facility.

On the other hand, they may need to plan for costly funerals for themselves and their parents because in the Hmong culture, funerals take place over the course of several days and include providing meals and housing for scores of mourning extended family members.

These are just two of the aspects of their estate plan that could be quite different from your typical plan.

Example #2

If your white client grew up on a farm that had been in his family for more than three generations in southeastern Wisconsin, and had never in his 35 years of life met a Black person – until he met and married his wife, who is Black and was from a farm community in South Carolina, would the estate plan you recommend reflect their different backgrounds?

You learn that his wife's grandparents were descendants of enslaved people and were themselves sharecroppers during the years Jim Crow laws were enforced by KKK members and the local sheriffs.

You also learn that they met while teaching at the same high school, and are in the process of buying a home and plan to raise their two teenage sons (the wife's children) in a suburb near Milwaukee with very few Black residents.

Do you need to know more about their racial histories before you start creating their estate planning documents? Will your clients need to appoint agents who understand the struggles their parents and grandparents endured?

Will your clients, or their agents, need to understand how to navigate health care systems that may be discriminatory? Will the client's options for housing, employment, and long-term care be limited because of their mixed-race family?

Example #3

What if the couple you are beginning to work with to create an estate plan that includes long-term care planning are first generation immigrants with different immigration documents?

The husband is a naturalized US citizen, and the wife is a Lawful Permanent Resident (LPR). They entered the U.S. about 10 years ago. Many of their relatives (several siblings, both parents and their two living grandparents) still live in Guatemala, and your clients plan to travel to Guatemala as often as possible to visit them.

They are looking to you for advice about how to set aside funds for travel and their own long-term care costs. Do you need to know more about immigration law to determine the amount they should set aside for travel expenses?

What if the husband can travel more often because he is a U.S. citizen, and the wife has to limit her time out of the U.S. to maintain her status as an LPR? Will that change your planning strategies? Can you use Marital Property Agreement planning to preserve their assets? Will the wife be able to become a U.S. citizen soon? Will their plan need to be changed if they are both U.S. citizens?

You Want Your Law Practice to be a Multicultural Practice

However, you are usure about how you can let your new or potential clients know that you are somewhat culturally competent (and still learning), and want to learn more about their history.

Exactly how do you do that?

The questions you ask and how you ask them during your initial consultation must signal that you are going to incorporate whatever you learn into the documents you draft and the advice you provide. The following questions may help you open the door:

• “Will your health care agent’s decisions be affected by customs that have been part of your family’s life for generations or affected by racism in the health care system?”

• “What are your financial goals related to your long-term care?”

• “Are you concerned about paying for nursing home care for yourselves or other family members or do you feel confident that a family member will provide for your care?”

• “What have your family members done, in the past, when someone needed 24-hour care?”

• “Do have any concerns about the availability of health care services in your community, if you ever need home care services?”

• “Does the community where they live serve persons of color with the same level of care?”

Conclusion: How You Best Serve Your Clients

Elder law and health law attorneys who want to create multicultural practices to best serve their clients should consider how best to listen and talk to clients about their racial and ethnic backgrounds. Your approach must come from a place of concern and genuine interest. Estate planning and Medicaid planning require cultural competence, since clients' planning goals are affected by their unique cultural histories and circumstances.

As you listen and learn from your diverse clients, you could become an advocate for democratic, anti-racist multiculturalism within your law practice.

It all starts when you create a culture within your office that addresses the legacy of racism by asking your clients for their stories, and in being willing to change how you provide your services to reflect the unique cultural and ethnic backgrounds of your clients.

When you and your staff become allies who are committed to working for racial justice in the legal system and the health care system, you will be serving your clients’ estate planning and long-term care planning needs now and into the future.

This article was originally published on the State Bar of Wisconsin’s Elder Law and Special Needs Blog. Visit the State Bar sections or the Elder Law and Special Needs Section webpages to learn more about the benefits of section membership.

Endnotes

¹ Paul Kivel, Uprooting Racism: How White People Can Work for Racial Justice, c. 2017 (1^st edition c. 1996) New Society Publishers, p. 323.

² Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America, c. 2017, Liveright Publishing Corporation. Chapter 10: Suppressed Incomes.