It’s well established that Therapeutic Jurisprudence (TJ) attempts to ensure the law provides the best psychological outcome possible for our clients.  While theoretically this makes sense, in day-to-day practice, effecting that can become confusing.  Guest blogger Jessica Cousineau provides some practical tips…

I’m going to start with two premises. The first premise is that the goal of good estate planning is to avoid litigation entirely.  In that way estate planning begins with a therapeutic goal in mind.  The second premise is that estate planning attorneys are essentially interpreters.  It’s our job to ensure that we explain our clients wishes to those who will have to deal with the documents we draft.

However, there are some inherent blocks to these goals. Unfortunately, these blocks often lead to anti-therapeutic effects within the estate planning process and the end documents. Luckily, a thoughtful attorney can mitigate these effects and help ensure that the client’s voice is the one clearly heard in the documents.

Estate planning is an intensely personal event. Yet, people frequently put it off, or make assumptions about the process that keep them from realizing the full benefit of it. By its very nature, the process of planning for incapacity and death forces one to confront their own mortality. This confrontation is inherently negative and creates stress. In fact, the planning process often makes people so nervous that they may either ignore it completely or, alternately, become hyper-focused on it. Either way it is our job to help them develop a healthy relationship with both the process and their final outcome.

To help achieve a sense of balance for the client, the attorney needs to focus on 2 distinct areas:

  1. The first is ensuring that our office facilities and policies provide a calming and helpful structure for our clients.
  2. The second is allowing our clients to come to terms with their feelings regarding their incapacitation and eventual death. This will allow us guide our clients through careful planning to ensure that their documents communicate clearly to their family, friends, and community.

Office Facilities & Policies

Perhaps both the easiest and most difficult part of ensuring a therapeutic outcome for our clients is ensuring that our office creates a space where they are comfortable enough to both learn and plan.  To do this, it is important to look critically at our office itself.

The physical layout of the office should be one that is easy for our clients to navigate.b  In practice, that means that we look at any mobility issues our clients may have. BIf those are present, it can be helpful to ensure our office is on a ground floor (or at least has a good elevator).  Additionally, office furniture should be comfortable, and easy to both move and get up from.

Alternately, if our clients have younger children, evening office hours and an area where children can play may be helpful.

With any type of client our materials should be given to them in a format they will feel comfortable reading.  This can mean anything from electronic documents to printed documents with large print, depending on the individual clients and their needs.

Additionally, as you talk with the client, you may find that they would prefer to do research on their own, or want to talk with you about what others do with their plans, or want to find a way to effect a particular wish.

Negative Input and Positive Outcomes

Once our clients are in the office and talking with us, it’s important to ensure that they are comfortable with the process of planning for incapacitation or death.  The first step is to figure out what, if any, concerns they have.  They may fear leaving loved ones without support, or the probate system itself, leaving a spouse or child without to tools to care for them during incapacity, or the possibility of their heirs fighting once they are gone.

Whatever their fear, it’s our job to make sure they overcome any negative impacts those may have on the planning process.

This can take several different tacks, depending on the clients themselves. Having an active conversation with the client at your initial meeting is imperative.  Often, I begin this ‘conversation’ even before our initial meeting by having them write a “Personal or Family Mission Statement” at the same time they give me their personal and financial information.   From this, I can begin to understand what values are important to them.

Once you have a good sense or your client and their needs, you can help them look at the right vehicles for their plan.   It’s at this point that the lawyer’s part becomes more of a legal advisor and less of a legal counselor.   With good communication and work understanding the clients needs, the attorney can help ensure that the client’s autonomy and personal needs dictate the documents.  They will no longer need to worry about a legislative scheme dictating their final conversations with their heirs and community.  Nor, will they need to worry needlessly about having their family and friends deal with a process that doesn’t fit their particular needs. And, ultimately, they will be able to feel that they have taken care of those they wish to in the best possible way.

The conclusion of this seems relatively self-evident, and in some ways it is. That said, I’ve seen many attorneys who get lost in the legal technicalities of planning and forget to focus on the clients and their needs.

Using TJ as a guiding principle helps to ensure that we don’t forget the client in the joys of crafting the perfect document.

Jessica Cousineau is an Estate planning lawyer in Oregon, USA.  


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