In a 1998 Consumer Reports article that utilized Federal Reserve Board data, it was confirmed that seven out of 10 Americans do not have wills, translation: estate plans. They have taken no steps to put you or other advisors in a position to help them, should something unexpected happen, and something terribly unexpected happened in New York City and Washington, D.C., on September 11, 2001. Since then, there have been multiple anthrax incidents and the malevolent cloud of uncertainty from terrorism exists on most minds. What will happen next, and when?
New York courts, although acting courageously and compassionately, are besieged by thousands of people seeking judicial means to put their lives back together again. No matter how able, active and efficient the judge, the courts just cannot construct for someone something they have not done for themselves. Courts cannot write wills. They often cannot keep the family's usual advisors in the picture. Property of a deceased person often is put into the hands of advisors under state law. This may not be best for the family because they may divide the property into proportions between the spouse and children, or children and others, in an unacceptable manner. This done not because the courts want these results, but because the laws applicable to people who have not planned mandate these types of arrangements.
In one dental professional's office was a sign that stated: "I can never undo the consequences of what you have not done." The principle is universal and painfully applicable since terrorism struck America so directly and so swiftly just a few months ago.
How can you help your clients prepare for what lies ahead and be available to them as their investment advisors, and often as family friends, particularly in periods of distress? You first must know the proper laws and urge, if not graciously insist, that those you advise are off the seven-out-of-10 list.
A primary document that lets you stay in the picture is a durable power of attorney, if drafted thoroughly and artfully. The attorney-in-fact stands in your client's shoes, even if the client is disabled (or missing), and can keep investment functions intact in all respects, including allocation decisions, total-return decisions, sales, purchases, wire transfers and so forth. The power also can authorize estate planning to be done principally through gifting and modification of living trusts.
It will, simply put, let your client's representative act for the client as if he were standing in front of you or anyone else and giving you instructions about anything. However, the power must be effective in your client's principal state of residence and other states as well. This is true particularly if you have multiple offices and need transactions performed for a client who is disabled, for example, and your local office is advised by local counsel that it needs a power effective in that state, or, for example, if the client has a second home in a second state or in a foreign country. The laws of that local jurisdiction should (but may not) follow the laws of the location of the principal power.
Other appropriate words of advice are that powers should be handled carefully because the durable powers permit the agent (attorney-in-fact) to act whether or not the client is disabled. It is a good practice to re-sign the power every year or so as well, so that no one relying upon an old power questions whether it has been revoked, notwithstanding many state laws that say an older power cannot be challenged. By the time you have won a lawsuit to enforce an old power, its whole purpose of swift action has been defeated.
You have heard of health-care providers and living wills. The former generally let someone other than a court make health decisions, other than a court, if sickness strikes and the ill person is unable to give instructions to medical personnel. The latter is an equally serious document that lets the person named stop life support or life-sustaining systems. This may sound trivial, but powers of attorney usually do not address these health issues. What do you do if a client needs an important health-care decision made or is totally paralyzed and using all of his or her assets for medical and related care (in home), and insufficient assets will be left for the family or companions if this process continues?
These tripartite documents put your client in a position to let you receive investment and disbursement instructions under any set of circumstances and conserve assets for the client and his or her dependents, be they a spouse, children, elderly parents, companions, friends or whomever. They also keep open the channels of your advice and counsel when it is most needed. Otherwise, bills cannot be paid, taxes filed or investment growth and management continue.
These three documents are for lifetime protection. They all cease their effectiveness at your client's death and sometimes after a long period of your client being missing. This is where a living trust or a will or combination of the two permits the assets often managed over a lifetime to pass to the heirs your client chooses and in the manner he or she desires. You can be appointed investment advisor in the estate planning documents, and what worked for the client during life will work for those who are your charges thereafter. Court supervision is the choice of last resort and the result of nothing being done in most cases. Plants do not grow without food, water and light. Assets do not grow without adequate documents in effect during life and at death.
Seven out of 10 is an outrageous number. Upon every financial professional, among others, falls the role of at least bringing these issues to the attention of those with whom you have worked so long and effectively, so the process can continue no matter what, even in uncertain times. It is not necessary to engage in scare tactics to raise important and serious estate-planning concerns that investment advisors, as well as other estate planning and financial planning professionals, face. All that is necessary is the understanding of how few people plan and the awful consequences that have come from the absence of giving diligent attention to one's affairs.
Roy M. Adams is a partner and worldwide head of the trust and estate practice at Kirkland & Ellis in New York.