My husband and I adopted the phrase "Roots and Wings" in describing our approach to raising our children. I now realize that this is the theory to which I subscribe in relating to my clients as well.
"Wings" are the sense of empowerment I strive to give to my clients to help them adjust to their new lifestyles and become survivors. "Roots" are the knowledge and confidence they need to do so.
In my opinion, estate administration is unique in that it affords a legal assistant an opportunity for an in-depth relationship with a client and the possibility for making a difference in some of their lives. As the degree of impact will vary depending upon the needs of the client and his or her level of legal sophistication, I tend to adjust my approach accordingly. Clearly an interpersonal relationship is less important when I am dealing with a corporate fiduciary than it may be with a pro bono client. For purposes of this article I will discuss my relationships with individual clients who fall between those categories.
Often my clients are elderly women who have had little contact with attorneys other than that associated with purchasing a home or signing a will. Although they may be polished in a social setting, they are often unsophisticated in a legal environment. In addition to dealing with the emotions associated with the death of a spouse, these clients must face a legal process that may appear to be overwhelming. As a probate legal assistant I can help bridge the gap between attorney and client while adding a touch of humanity to the process.
Establishing Roots
The "Roots" begin shortly after the initial client interview. It has been the practice at our office for the attorney in charge to introduce me during the end of this meeting. He or she then explains to the client that I will be calling to gather the additional information we will need to complete the application to offer the will for probate and to prepare the inventory, appraisement, and list of claims and, if necessary, the federal estate and state inheritance tax returns for the estate. With the first telephone call my role quickly expands from that of information gatherer to include interpreter and information facilitator. Invariably my new client will ask a question about or misstate a phrase or legal concept that was raised at her initial meeting with the attorney. It becomes my job to convert the "legalese" into language that the client can understand and to do so in a non-condescending manner. The usual result is that my client will then discuss her legal questions with me and ask that I articulate them to the attorney on her behalf. I often wonder if I am considered to be more approachable because I am not an attorney. Had this relationship not developed before the first bill arrives, it soon follows when my client realizes that it may be less expensive to communicate with me directly.
At this point I serve as a gatekeeper.
However, this added role poses obvious ethical considerations. Through experience I have learned that I have authority to discuss routine administrative procedures but I do not have, nor do I want, authority to answer legal questions or offer any legal advice. I can explain in detail how to transfer title to a vehicle, open an estate bank account, and make application for life insurance benefits. I cannot interpret provisions of a will for a client or make a recommendation about his or her estate plan. When presented with one of this these latter types of questions, I explain that I cannot give legal advice but I do offer to relay the client's question to the attorney. My favorite phrase is "Well, this is a Tom Barton question. I'll ask him and then he or I will get back with you." The hard part comes when I know the answer but realize that I cannot give it without the color of giving advice.
Interestingly, by admitting that I cannot provide an answer I am often perceived to be even more human, and my client, in turn, typically responds by becoming less self-conscious about asking me questions. This process frequently fosters a type of camaraderie that can be invaluable when I must ask certain questions and request certain documents that might otherwise be considered to be too personal. This is crucial because a large part of my job entails identifying, describing, and valuing all probate assets of an estate and providing that information can be difficult for an elderly client who believes that her net worth should remain private.
Through these interactions "Roots" are established as the client gathers the knowledge and confidence he or she needs to complete the administration of the estate and become a survivor in other areas of their lives as well.
Empowering Wings
Warning! Helping to provide "Wings" is a much more subjective process. If you do not enjoy "touchy-feely" topics, I suggest that you read no further. However, communicating with clients who are grieving requires a willingness to be touchy-feely and can provide satisfactions that transcend a paycheck!
By the time you read this article, I will have been a probate legal assistant for over fifteen years. During this time I have come to view grief as a healing process. As such, I find that it is often necessary for me to be a para-psychologist as well as a paralegal. Although my clients may become emotional at times, I realize that the occasional tear or outburst is simply part of the grieving process. In order to maintain my objectivity, I keep coming back to my favorite pop psychology phrase that "Feelings are not right or wrong, they just ARE!" This is the tool by which I can separate myself from responsibility for my client's emotions and allow my client to feel what he or she needs to be feeling at that time.
I confess that I take pride in being a minor participant in my client's grief process. Many books have been written on the various stages of grief and I embrace the concept wholeheartedly. Throughout the years, I have dealt those who were passing through or were stuck in various stages, such as those that I identified as denial, anger, remorse, and depression. The lucky ones were able to achieve acceptance, rather than mere resignation. As each stage may call for a different response, it is crucial for me to try to identify the particular stage at which my client is centered (on that day).
Dealing with younger clients following an unexpected death of a spouse or close family member poses a special set of challenges in a client relationship. Vivid in my memory are the wife and young mother whose husband was killed by a drunk driver, the sister whose brother was murdered, the forty year old wife who watched her husband die of a rare disease, the brother whose sibling was so despondent over his divorce that he drank heavily and died after refusing to take his insulin, and the wife whose husband was killed in a helicopter crash. In each case, my client went through one or more periods of emotional paralysis that impaired our ability to represent him or her. With each, it was especially important for me to be flexible, patient, and sensitive to his or her changing needs. If my client wanted to talk, we would talk. If I sensed that he or she was uncomfortable meeting in the office, I would suggest meeting at his or her home or at a local coffeehouse. In one extreme case it was necessary for me to fly to Florida to obtain the records from a young widow who could not face opening her husband's desk drawer and was not willing to let anyone else help her. Although working through paralysis can be time consuming, it is often necessary to attain the rapport needed to solidify our working relationship. Once achieved, we can move to the next phase of the representation.
Often a sudden death leaves unresolved family conflicts and we frequently have the privilege (?) of settling those disputes through the administration of the estate. For example, it took approximately four years before we realized that that the conflicts between our client and his former sister-in-law were centered in her resentment that her deceased ex-husband had failed to deliver a camera and camera equipment to her pursuant to the terms of the property settlement agreement in their divorce proceeding. I am currently working on another estate that more closely resembles a divorce of the deceased husband and his surviving spouse. Once we can identify the underlying conflicts, we can look for ways to resolve those issues so that we can move forward with the administration of the estate. A solid client relationship built upon open communications and trust is invaluable in uncovering these issues and evaluating possible solutions .
These disputes can present ethical considerations as well. If a conflict arises among the beneficiaries of an estate, and our client is both a beneficiary and the personal representative of the estate, we cannot represent him or her in both capacities. Even a hint of such conflict is a heads up for me. In these matters I look to the attorney in charge to explain the ramification to the client and give me direction.
For many of my elderly clients, the grief process is compounded by the fact that their husbands did not prepare them to handle their own financial affairs. Although a husband's intent may have been to protect his wife from the burdens of financial concerns, in so doing, he was unintentionally leaving his wife ill equipped to be a survivor. For these women, learning to handle the books while writing thank-you notes is overwhelming. The Wings they may need are assistance in identifying and locating their assets and then the confidence to start making decisions and taking charge of their financial affairs. Participating in the administration process can be a stepping stone.
The first step usually begins with the information gathering stage. To involve these clients in the process, I usually call first to let them know that I am mailing my form letter in which I request a detailed list of the information or documents I will need to prepare the inventory, appraisement, and list of claims and, if applicable, the federal estate tax return for the estate. I stress that the list may be overwhelming and encourage them to call me if they have any questions. A few of my clients have surprised me by being able to provide everything on the list without further interpretation. However, most need a road map or buzzwords to help them identify the responsive documents. If this approach fails, I offer to meet my client at his or her home or bank so that we can locate the documents I need. It does not matter to me in what form or by what method I obtain the information. What is important to me is that my client makes the decision about how to provide the documents to me.
Encouraging my clients to make choices is my primary tool for empowering them to move forward. If a client asks for assistance I will offer alternatives then encourage him or her to chose among those options. For example, if a client asks me how to transfer title to a car, I will offer to provide him or her with all of the forms and information they need to do it themselves or offer to handle all of the transfer details myself. I always conclude my explanation with the statement that "it is your choice." Some of my most satisfying experiences have been the estates for which my client starts out wanting me to perform all of the administrative duties, including managing the estate's bank account, and is then able to take over those tasks, one by one.
As challenging and rewarding as the healing process can be, I realize that I am only a minor participant and that my client's emotional health is not my responsibility. Nevertheless, when I do see Wings, I celebrate! For me it is a little like sending a child off to college. It is gratifying to know that you have helped them to attain the confidence and knowledge they need to go it alone and the security of being able to come back for support and advice, if needed.
Julia E. Merkt is a sole practitioner in El Paso, Texas, where she has been focusing her practice primarily in areas of elder law since 1992. Ms. Merkt is a member of the National Academy of Elder Law Attorneys and president-elect of the Texas Chapter of NAELA.