Collaborative Estate Planning: Learning to Work Together and Plan Nicely with Others
Will the government reach a compromise and avoid the “fiscal cliff”? By the time that you read this column, we will know the answer. Regardless of the result, many Americans are frustrated by the lack of collaboration, cooperation, and even common courtesy among the elected officials in Washington, D.C. (and elsewhere).
Some of the same issues arise in the estate planning context. Clients want results. Generally, they want their advisors to work together to accomplish those results in the most effective, efficient manner possible. Although ethical and other rules complicate this type of collaboration, most trust and estate lawyers agree that a team-oriented approach, with all advisors at the planning table working together to serve the client and working in his or her best interest, is the best practice.
This column will explore some of those collaborative organizations and tools and the ways that you can use them in your practice. It will not address the ethical or other rules that might apply. Resources such as the American College of Trust and Estate Counsel’s Commentaries on the Model Rules of Professional Conduct (MRPC) (www.actec.org/public/Commen tariesPublic.asp) provide excellent analysis of the application of those rules, including examples of interdisciplinary collaboration. For example, the commentary to MRPC 1.6 states:
Consultants and Associated Counsel. The lawyer should obtain the client’s consent to the disclosure of confidential information to other professionals. However, the lawyer may be impliedly authorized to disclose confidential information to other professionals and business consultants to the extent appropriate to the representation. Thus, the client may reasonably anticipate that a lawyer who is preparing an irrevocable life insurance trust for the client will discuss the client’s affairs with the client’s insurance advisor. . . . As indicated in the ACTEC Commentary on MRPC 1.1 (Competence), with the client’s consent, the lawyer may associate other professionals to assist in the representation.
ACTEC Commentaries on the Model Rules of Professional Conduct 72 (4th ed. 2006).
Organizations Promoting Collaborative Estate Planning
Another heading of the ACTEC Commentaries accurately summarizes the general nature of estate planning: “General Nonadversary Character of Estates and Trusts Practice. . . .” Id. at 97 (commentary under MRPC 1.7). Indeed, some lawyers decide to focus on trust and estate law as a result of that dynamic. Beyond the collegial dynamics of a family or similar joint representation, most trust and estate lawyers embrace the opportunity to work alongside other professionals. Those “allied” professionals often include the client’s certified public accountant (CPA), charitable giving officers, financial planning professionals, life insurance professionals, and trust officers.
Many of you are likely involved in your local estate planning council. Most of those local councils are affiliated with the National Association of Estate Planners and Councils (NAEPC) (www.naepc.org). Council members typically include accountants, financial professionals, lawyers, and trust officers. A council meeting often revolves around a meal and an opportunity for professionals from each of these disciplines to interact, take advantage of educational opportunities about planning topics, and even refer clients to each other.
The NAEPC also offers professional designations that promote its interdisciplinary estate planning principles. The NAEPC web site (www.naepc.org/estate_planners.web) states that “[t]he Accredited Estate Planner® [(AEP)] designation is available to attorneys, Chartered Life Underwriters, Certified Public Accountants, Certified Trust and Financial Advisors, Chartered Financial Consultants, and Certified Financial Planners®.” One of the requirements to obtain the AEP designation is “[d]edication to [the] team concept requirement”: “The applicant must acknowledge a commitment to the team concept of estate planning by signing a declaration statement” (see www.naepc.org/AEP_qualifica tions2.pdf).
Other organizations promote interdisciplinary fellowship and exchanges. For example, the American Association of Attorney-Certified Public Accountants (AAA-CPA) is more focused than the NAEPC. According to the home page of its web site (https://netforum.avectra. com/eWeb/StartPage.aspx?Site =AAA-CPA), the AAA-CPA was founded in 1964 “to protect the rights of those dually qualified to practice as they see fit, be it law, accounting, or both.”
Even some of the major continuing legal education conferences now offer multiple tracks to serve not only the lawyers who practice trust and estate law but also the allied professionals who serve the same estate planning clients. For example, the recent Heckerling Institute on Estate Planning (www.law.miami.edu/heckerling), hosted for the 47th time this year by the University of Miami, has featured a “Planning with Financial Assets” series for the past few years. Professionals from all estate planning disciplines attend those and all other sessions at the Heckerling Institute and also have opportunities to network at hosted receptions and other events there.
Technology to Facilitate Collaborative Planning
The organizations above and others encourage estate planning professionals to work together, but they do not necessarily equip you to do so. You can execute collaborative planning through the use of technology. You can do so without technology as well. Of course, you can also draft your documents with a typewriter! As with many aspects of law practice, technology promotes both efficient and effective collaborative estate planning.
This author’s first column (November/December 2004 issue) mentioned Connect2A (http://connect2a.com), “an application service that lets Accountants, Attorneys, Financial Professionals, and their Clients securely gather and share personal and financial information. . . .” The Connect2A approach uniquely centers on the client, who inputs his or her information via a secure portal over the Internet (although one of the advisors also can input this information). The client’s advisory team can then access the client’s information, including asset details, contact information for his or her advisors, and trust information. One of the primary advantages of this portal is facilitation of lifetime and testamentary trust funding, although you can apply it to other planning and administration tasks as well.
Using a similar but more expansive approach, the My Personal DataSafe (www.mypersonaldatasafe. com) system allows the client to store his or her family’s personal information and upload copies of birth certificates, deeds, medications, stock certificates, life insurance policies, and more. You can update family, medical, financial, legal, and insurance information. Then the client can authorize complete or partial access to advisors, physicians, or family members. Clients can also choose when to share the information via My Personal DataSafe.
The My Personal DataSafe system also provides a place to store electronic passwords for easy access to those whom the client wishes to have access. In addition, if the client passes away, his or her family can have access to any passwords or information that the client wanted to share using a “share after death” feature. Client- and professional-oriented memberships are available.
Both of these collaborative services focus on connecting the estate planning team to the client’s data. Such a connection is surely important. For example, some trusts are not funded because of the lack of data sharing among the client’s estate planning team.
Few technology platforms exist, however, to create and maintain collaborative planning teams. That technology should put into practice the concept of the NAEPC’s interdisciplinary model. It should go beyond monthly meetings and occasional education events to facilitate regular—perhaps even daily—interaction among allied professionals. It should provide calculation and presentation software applications to allow the planning team to “crunch” client numbers and illustrate planning concepts. Ideally, it should allow advisors to communicate securely among each other and with the client.
One Internet-based platform that approaches these lofty goals is WealthCounsel’s The Advisors Forum (www.advisorsforum.com). The Advisors Forum was created more than five years ago to assist lawyers in generating consistent new business with other wealth planning professionals. The Advisors Forum provides personalized monthly newsletters (the “Wealth Counselor”), teleconferences, continuing education for presenters, blogging content, calculation/modeling software, and other tools to help lawyers collaborate with allied professionals. The Advisors Forum also provides a discussion list/forum for its members and an on-line member directory. Through The Advisors Forum, members can offer private label, secure (256-bit encryption) on-line client document vaults known as ClientDocx. The Advisors Forum has entered into partnering relationships with the Financial Planning Association (FPA) (www.fpanet.org) and the National Association of Insurance and Financial Advisors (NAIFA) (www.naifa.org), which will presumably strengthen the outreach of existing lawyer members to those other professions.
Other platforms might provide similar functionality. For example, an article from about two years ago mentioned several prominent financial planning software applications that include collaborative features. See David Lawrence, The Art of Collaboration, Fin. Advisor (Aug. 2, 2010) (www.fa-mag.com/news/the-art-of-collaboration-5748.html) (mentioning Naviplan (www.naviplan.com) and MoneyGuidePro (www.moneyguide pro.com) as well as a few Internet-based portals). Perhaps this column will inspire more innovation to provide a platform that delivers the collaborative estate planning model.
From Theory to Practice— And Why Collaborative Planning Matters
Actively participating in a local NAEPC-affiliated estate planning council is an excellent beginning to your collaborative estate planning path. You need to use technology, however, to maximize your interdisciplinary efforts. Connecting the entire planning team to the client’s data will promote efficient planning. Connecting the entire planning team to each other on an ongoing basis is even better.
In this editor’s experience, clients definitely want results that achieve their goals. They generally want more than that, though. Clients want to put into place an entire estate planning team whom they can trust and who work together well to accomplish those goals in each client’s best interest. They do not want bickering. They do not care about terms such as “lawyers” and “nonlawyers.” They want a committed, collaborative team of professionals who behave that way and serve well, both now and ideally for generations.
A few people will still choose to use LegalZoom to prepare their estate planning documents. Most people in this editor’s view will choose to work with a team of allied professionals who bring their training, experience, and judgment to the planning table jointly to accomplish the client’s goals. Clients generally desire a team of trusted professionals to design and implement their trust and estate planning. Will you collaborate? n
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