In Greek mythology, the story of Cassandra followed the template of that genre. Cassandra was, by all accounts, a stunning beauty. So much so that she attracted the attention of a god, Apollo. In Greek mythology, this was a common occurrence and never worked out well for the woman who was unfortunate to attract a god’s attention.

Cassandra had a gift that others lacked. She could accurately predict the future.

What would your stock portfolio look like if you had such a gift thirteen years ago for just one day?

Only one discipline correctly predicts the future – physics. Tell a physicist you want to shoot a cannonball out of a cannon and she will tell you exactly where it will be in space at a certain time in the future if atmospheric pressure, wind velocity, caliber of the cannon’s barrel, etc., are known.

Lawyers are not able to compete with that but we come close. My job is to help family leaders plan. A plan in the art and science of understanding a situation, envisioning a desired future, and laying out ways to bring that future about. If you believe that this definition is well-reasoned, then you can understand why its author, the United States Army, has been so successful.

Casandra no doubt had great satisfaction in her job. She warned family and friends of the next earthquake, a dip in the market, and when someone would need long-term care. She warned of future taxes, which gave the people in her village time to create tax saving trusts or move to Athens.

Apollo was like every god, petty. Why in the world Cassandra rejected his advances, no one really knows. To his credit, Apollo did not take her gift of prophecy away. He just changed the situation in one cruel way. No one believed Cassandra from that moment on.

What is worse? Confidence erosion from being doubted each day, or the anguish that comes from being correct but seeing the harmful affect on not only those who doubted you but innocent bystanders?

Today, I learned that a path I predicted was taken it its end almost down to the day.

Did you know that when a vet makes a VA claim with a ALS diagnoses, the VA stipulates service connection, automatically approves a 100% rating, expedites the file. The VA! The VA doesn’t expedite anything.

I handled VA and Medicaid claims as a crisis elder law attorney for years. Crisis elder law refers to a situation in which a family leader did not plan, is now paying the price, but doesn’t really know because they are incapacitated. Care costs per month exceed income, often by a wide margin, and the family is running out of money. If there is a spouse still living, the look of worry on her face is sobering. The kids come in to pick up the pieces. They came into my law firm for meetings stressed, and often left early to pick their own kids from soccer practice. For a generation that was to adamant about not burdening the kids, they sure caused a lot of kids waiting after soccer practice for their ride home.

I quit crisis practice and remember the case I declined that was the last straw. In that case, I knew exactly the path the family leader, a vet was about to take. I also knew the law. Sadly, immediately after our discovery meeting, they called to tell me they would not get an assessment (required by the VA) because thier family doctor didn’t know what one was. They would not consider even planning for residential care because the family would care for him at home. This the same family who could not be bothered to come to the office for a frank discussion of the carnage that was about to occur with the family’s finances.

Last week, I was told that my beside manner was a “dressing down.” That bothers me. When I try to explain why a person who is as sensitive to the suffering of others had become impatient to the point of rudeness, I explain in this way. Imagine waking up everyday and it is a sunny day. I currently live in Puerto Rico and I live this reality. On my side of the island, there is a rain shadow. The sky has not a cloud and the temperature is 78 in the morning, 86 at its most warm, and back to 78. This verifiable reality aside, imagine your mood if you spent four hours of a day arguing with old people who are adamant that the sky is green. Multiply that times 365 and again by 28. That is what it is like to Cassandra.

Eight months after I declined representing the old vet with ALS, I learned he had, on schedule, moved to an Adult Family Home at a rate of about $8,000 per month. He lived another eight months. The VA pays retroactively on claims such as his. We are talking about hundreds of thousands of dollars. In addition, VHA would recategorize his health care to the highest level. VA pays private providers directly.

In the last six months, I failed to convince a woman who works at a nursing home that the probability of needing care and the cost of care made an investment in a legal plan that mitigated that risk worthwhile. It is not as if I recommend espionage. I recommend a trust in each spouse’s will that uses a trust, authorized by federal law, to protect the spouse’s inheritance from Medicaid spend-downs, penalties, and liens. When I speak of this trust, I know that it is the single best asset protection in the law. Most react almost angrily because I am trying to scare them.

Everytime I look up any data that could help me understand the probabilty of needing care, the answer is the same. Realize that I have been asking this question for about fifteen years, for myself if for no other reasons. I try to find reliable sources. Today, from The Administration for Community Living (ACL), an operating division of the U.S. Department of Health and Human Services (HHS). 

• Someone turning age 65 today has almost a 70% chance of needing some type of long-term care services and supports in their remaining years

• Women need care longer (3.7 years) than men (2.2 years)

• One-third of today’s 65 year-olds may never need long-term care support, but 20 percent will need it for longer than 5 years

Regardless of statistics, the chances the woman I failed to convince of this risk is simple. She either has a 0% chance of needing care, or she has a 100% chance. Her husband was cursed with an infliction that impedes most who suffer from it in from reaching the correct decision, i.e, he was an engineer. His linear thinking could not lead him to the correct conclusion on a similar issue.

There are twelve states that have their own estate tax. My state, Washington, has the highest tax rate of the twelve -20%. Only two states, Hawaii and Maryland, allow estate tax exemption portability. Portability means that your spouse can inherit your individual tax credit along with your estate. This doubles the total exemption amount. Without portability, there is only way to achieve this, a Credit Shelter Trust. No big deal because Credit Shelter Trusts have been around for decades, are very common, and save a lot in taxes. In terms of probability of owing a tax, it is also 0% or 100%. The total value of each estate is either above the exemption amount or it is not. Without two exemptions, this family leader’s estate will write a check to Washington, in today’s dollars, in an amount exceeding $140,000.

Before I continue on with other examples, I wish to point out that estate tax is a situation. It is not an opinion. It is not an emotion. A long-term care worker chose the same course as most of her patients did when they were younger. When I look at the statistics, to me it is a cost-benefit analysis. Plans should be based on verifiable facts, not anecdotes. They should concede the possibility of obstacles and threats to the desired future. They should lay out ways to avoid these perils. Most believe it to be more important to cling to current beliefs.

My Other Failures in the Art of Persuasion

I once failed to convince a man of the wisdom of a special needs trust for his daughter who was next to him in a wheelchair, smiling at me. To her, it made sense.

Just this month, I failed to even warrant a return email from two families referred to me by a financial advisor who also had dependent, disabled children.

Washington changes its rules regarding Revocable Living Trusts. This came in the form of a Court of Appeals ruling and a DSHS regulation revision. Trusts in a living trust now render assets in them ineligible to later fund a 42 USC trust even if, by some miracle, a couple had one set up correctly in their will. A personal residence in a living trust also renders a personal residence subject to Medicaid spend-down when it is exempt otherwise. To me, that is clear. Couples should revise existing plans to adapt to this legal change. Yet, in the last two months, I have been chewed out because their plans “weren’t any good” and, on three occasions, they had to talk to either their kids or a financial advisor before they could make a decision.

The law has very few choices and, in most case, just one choice. There is only ONE way to double the estate tax exemption if you are married, a Credit Shelter Trust. There is only ONE way to draft a Credit Shelter Trust. I can remember an 87 year old guy who argued with me for 56 minutes about this. I finally kicked out my office. He is dead by now. Price tag in tax that could have been avoided, far exceeded the typical cost of emotional plans rather than legal plans, i.e, $400,000.

Cognitive Biases

Confirmation Bias

Tendency to overemphasize facts that support your position and ignore or minimize those that tend to disprove them

Optimism Bias

When faced with verifiable facts, the wrong decision is made due to a belief that, regardless, it will not happen to them.

Pike Syndrome

A lifetime of frustrations leads to a tendency to give up, believing that a proven legal solution will not benefit them

Anchoring Bias

Overemphasizing one fact, usually the first fact heard, and ignoring other equally accurate facts

Clustering Illusion

Tendency to believe a series of events has significance and will continue, e.g., refusal to consider economic data because positive performance in a sustained bull market

Cheapskate Syndrome

Being to cheap to hire a lawyer to do that which you know you have to do but refuse to do but want to blame someone for being impatient when lightning strikes, as foreseen, and that is the real reason you did not update your will.