You Mean They Die? Estate Planning Professionals as Grief and Loss Workers
I'm old enough to remember watching television westerns in the 1950s, with their scenes of dusty streets and crinoline-clad women, children in tow, walking beneath the wooden shingle that read "Malcolm Mudslinger, Attorney and Counselor at Law (Widows and Orphans our Specialty)." At the time, I paid attention because daddy was a lawyer. Now I reflect on that shingle from the perspective of a solo practitioner whose work consists primarily of drafting wills and trusts, powers of attorney, and the probate court pleadings that go with the territory.
I also reflect on it from the perspective of working as a marriage and family therapist intern and bereavement counselor at a local hospice. The longer I do that work (three years now), the more I realize that I do my law clients, and myself, a disservice if, at the very least, I do not consider their experience of grief in the context of their legal needs. Mr. Mudslinger did not include "counselor" on his sign by mistake. Up until about 10 years ago, the California Business and Professions Code, which governs the practice of marriage and family therapy, did not require a lawyer to be separately licensed as a marriage and family therapist in order to provide the counseling services governed by the statute. The legislators responsible for that certainly did not go to the law school that I attended.
I used to think that one of the most challenging parts of my day was getting a petition past the probate examiners onto the pregrant list, but it turns out I was wrong. The most challenging, and rewarding, part of my work comes from the recognition that I, and all of us in related fields-trust officers, financial advisers, accountants, professional fiduciaries, mediators, life insurance brokers-sometimes meet with our clients at a time of loss, or anticipated loss. "What brings you in?" I ask. "Well, Fred and I were thinking, if something happens to us, we ought to have a plan . . . " "You mean, a plan for when you die?" I do not state it so bluntly, but that is the truth. Estate planning professionals, and family law, workers compensation, personal injury, and tenants' rights attorneys, work on a daily basis with people experiencing the storm and drama of loss. We work with clients over years and across generations, through every loss imaginable, we become trusted family retainers, to whom clients and families look for support. Yet it was not until 2004 that the California Continuing Education of the Bar even acknowledged it might be important for estate planners to know something about grief by inserting eight pages in its volume California Decedent Estate Practice.
Our clients do not come to us for grief work, yet they may be grieving a loss or anticipating one. If we have some awareness and understanding of these issues, we are more resourceful for our clients. If we specifically acknowledge the emotional reality of a situation, our client may be better able to deal with the legal issues. Just what is grief? Most of us think we understand it the way we do pornography: We can't define it, but we know it when we see it. But do we really know it? A client whose mother died told me "I wasn't expecting it. Mom seemed fine. Kind of weak, and she was fading. But I wasn't ready. I wish she'd come back and do it again. I know what to expect now." Grief is not a linear process, nor is it time-limited. We cycle back through earlier stages of grief. Some losses are forever. Anniversaries, for example, can trigger renewal of grief reactions. Like tides, emotions will rise in us again, often triggered by another, more recent loss.
Where does grief come from? Why do we grieve? Human beings are mammals, and mammals bond and form emotional connections that span time and space. Grief is the process of emotional detachment in response to a loss of that bond, and it is not limited to feelings following death of a loved one. The constant in all our lives is not stability, but change, the endless cycle of loss and renewal. Grief is the bridge between them.
There are recognizable stages to grief, although not everyone agrees on just how many. Sometimes it can seem like a 12 Step program. (Certainly Step One is the same: Admitted we were powerless). They vary in duration and intensity depending on the relationship. They can be prolonged or put on hold by a difficult probate process or litigation. So let's look at the cast of characters.
First on the stage of grief are the actors Shock and Denial, with their complementary lines: "I really don't feel a thing" and "Well, that's because nothing really happened!" Like shock following a physical wound, shock after a loss protects us from the emotionally unimaginable. But it cannot last.
Waiting eagerly in the wings are the apparently dysfunctional siblings Anger, Guilt, Sadness, Depression, Relief, and Fear. "Apparently" only on the surface, because all those emotions can be present for a grieving client, and they can all be part of a healthy grief process. If a child has cared for a sick parent through years of dementia, go ahead and ask "I wonder if it was a relief when your dad died?" There are no wrong feelings in connection with grief. The point is not to feel better, it is to feel, and that is better. Unacknowledged grief often provides the emotional subtext to conflicts among families. My probate litigator colleagues tell me it is always present in their cases.
Next up are the more mature members of the cast, Acceptance and Reframing. Acceptance comes with time and with making friends with those difficult emotions. It comes down to saying a simple "yes" to one's experience, to forgiving oneself for perceived failures, and to opening the door to the question "what now?" Although a loved one is no longer physically in a client's life, that person is emotionally and psychologically present. Reframing is the recognition that, though a person has died, the relationship will continue. It is simply time to write another chapter to the story. "How will I know this person in the future, how will she be part of my life? What rituals and reminders will help me to remember him?" In this way, individuals and families link past, present, and future.
Last to appear, at least in this four-act version of the drama, is Renewal. Who am I now that you are gone? What roles have I lost, what new ones open for me? How do I weave this story of our relationships into the fabric of my life? My client, Susie, came to me about four years ago, at age 46, dying of an unusual form of cancer. She had two children, five-year-old twins. I helped her tell the story, in her documents, of her values and what she wanted for her children. I listened to her. She has not died yet. She called me recently, glee in her voice. "I sold one of my paintings!" she told me. The artistic expression she had given up was renewed in her, and enriched.
"Yes, yes, yes," we say, "but I'm an attorney, I deal with facts and taxes, judges and juries, Lexis and Nexis, and getting that next client in the door. Who has time for feelings? Isn't that therapy?" Good question. I did not have time, either, to ask a client about her feelings about the death of her husband and the pending sale of her home of 40 years. Instead, I was all business. Petition this, probate that, inventory the other. Get down to business, that was my job.
Today, I do not sell my probate services to the surviving widow of hospice patient whom I am counseling, nor tell a taciturn widower seated in my law office that the fact that he has not left the house in the six weeks since his wife died may be a sign of grief. I did ask a widower client how long he was married. "Sixty-five years," he replied. "Gosh, that's a long time," I said. "Not long enough," and tears slid down his cheeks. Then what do we say? Too often, it is something like "Well, she was 86" or "Gosh, but it's been eight months since she died" or "Maybe you will meet someone else." That is the emotional equivalent of salt in an open wound. Instead, can we learn to simply say to him "That must be so hard," and thus become a witness another's experience of loss? In our offering and accepting of support to and from others, we participate in a healing process.
Therapeutic jurisprudence is the study of law as a therapeutic agent. It recognizes that the law, lawyering, courts, and judges have an impact on our client's emotional life and on her psychological health. Therapeutic jurisprudence seeks to humanize the law by addressing not only the traditional aspects of lawyering, but also the emotional and psychological impact of law and the legal process on our clients. It regards the law as producing behaviors and consequences. It asks us to look at those not just as a means to a desired legal end, but also as either therapeutic (emotionally supportive and validating) or antitherapeutice (emotionally hurtful). As long as justice and due process are respected, as long as the estate gets probated, we should do what we can to limit the antitherapeutic impact of our actions. This allows us to look at the law in a richer way, and to bring this awareness into the day-to-day practice of law, with our estate planning, probate, conservatorship, and family law clients. In all of those practice areas, loss is a common theme. Our most effective tool for helping is our willingness to listen.
My operational definition of listenting used to be "waiting to interrupt." Then, in my counseling program, I learned that it was a better idea to use my ears and mouth proportionately. I found the lesson repeated in John MacDonald's Nightmare in Pink (1964, New York: Fawcett Crest).
There is only one way to make people talk more than they care to. Listen. Listen with hungry earnest attention to every word. In the intensity of your attention, make little nods of agreement, little sounds of approval. You can't fake it. You have to really listen. In a posture of gratitude. And it is such a rare and startling experience for them, such a boon to ego, such a gratification of self, to find a genuine listener, that they want to prolong the experience. And the only way to do that is to keep talking. A good listener is far more rare than an adequate lover.
Ask about the family story, and listen. Ask about other experiences they may have had with loss, and listen. People who are dying are particularly open to and need connection, to tell the story. This is the most powerful experience of their life, so what do we do? Turn away or listen?
George Bernard Shaw wrote that "Life does not cease to be funny when people die any more than it ceases to be serious when people laugh." Humor helps us to acknowledge and endure what otherwise seems unendurable. Grief and loss are bound at the hip with joy and connection. Paul Rudnick knew that when he wrote his recent New Yorker article My Living Will: His living will included 22 items. Number 14 was "I do not wish to be kept alive by any machine with a "popcorn" setting." Number 15: I would like to die at home, surrounded by my . . . attorneys." So learn to help. It is good for business.
Additional resources and references:
American Bar Association Tool Kit for Health Care Advance Planning. American Bar Association Commission on Legal Problems of the Elderly. www.abanet.org/elderly
On Our Own Terms - Moyers on Dying www.pbs.org/onourownterms
Practicing Therapeutic Jurisprudence: Law as a Helping Profession. Wexler, D, Winick, B., and Stolle, D., Eds. Carolina Academic Press, 2000. Information on Therapeutic Jurisprudence: www.therapeuticjurisprudence.org
Charles A. Jonas is an attorney and counselor at law and a marriage and family therapist in San Francisco. He can be reached at email@example.com.