A legal site recently featured the following question:
I’m seeking guardianship b/c my mother is hospitalized, [she] had a stroke and is now in a coma and she has no P.O.A [Power of Attorney,] please help.
The asker then added,
What type of guardianship do I need to access accounts, pay bills, get realtor information, hospital records, and etc., she has no P.O.A or written will.
Imagine just the immediate stress on this adult child. Their mother is in the hospital. So the family is already in crisis just to manage medical care. Doctors make rounds in the morning and at night, so the adult child needs to be at the hospital during those times to speak with the doctor. There are care issues: Is the mother getting appropriate treatment? Are there medical needs that are going unmet? At the same time, the caregiver must manage the business side of the hospitalization. How will this get paid for? Where are the insurance papers? What forms need to be signed? Then, at home, who is fixing meals? Who is taking the children to and from school, watering the house plants, feeding the dog? Who is doing this caregiver’s job at work while they’re spending time at the hospital? Are they getting paid while they care for their mom? Are they even putting their job in jeopardy to take time off from work to care for their mom?
And, that’s just the tip of the iceberg. As the question implies, who will now manage the mother’s business affairs? Who will pay the mother’s bills, balance the mother’s bank account, manage the mother’s insurance issues, take care of the mother’s house, sell the mother’s car? How will the adult child even know what banks the mother uses, whether there are any other accounts or stock brokerage accounts? If the mother owned a business, who will continue to manage that business? Indeed, what if the parent were at the height of their career, running a business that was supporting a young family. Is there a business succession plan in place, to enable someone to continue to run the business at least long enough to manage a smooth transition to new management or sale of the business? When the mother passes away (which we all do, eventually, every one of us), since she has no will then who will decide which child gets the two-handled family credunza, or how key assets will be divided? Should those assets be put into trust, or handed over outright to the intended beneficiaries?
The bad news , unfortunately, is that this family will most likely have to hire lawyers and go to court to establish who will have authority to care for their mother. If the mother had designated ahead of time what she wanted to happen, with proper legal planning for disability, that document could have provided a roadmap. Instead, now, on top of everything else that is going on in this adult child’s life (including caring for her mother), she will most likely have to pay an attorney to file a court action for guardianship and possibly for a separate conservatorship for the mother. There will have to be “due process,” meaning all interested parties must be served with notice of a hearing and apprised of their right to appear. Medical experts will have to present testimony about the need for a guardianship. An attorney or guardian ad litem will be appointed to represent the interest of the disabled person, “against” those who would seek to take over her affairs. If one sibling disagrees with the action proposed by the one child, that sibling may “lawyer up” with their own lawyer, leading to a contested court action over who should be named as guardian or conservator. The Court will have to be concerned with possible mismanagement, and thus must take measures to make sure the person appointed does their job properly, perhaps by requiring bond, and the guardian will have to make periodic accountings to the Court. The siblings may find themselves in such opposing positions that the family is torn apart; they may stop feeling like “family” as a result; they may even feel so wounded that they stop speaking to each other.
The job of preventive legal planning is to keep people out of court, to help them resolve conflicts in a healthy manner that leaves everyone feeling whole. Which kind of scenario do you imagine winds people up in court or feeling wounded:
- Scenario A: the parent has planned ahead, made their wishes known, worked through all the issues, and set up a detailed plan to implement their wishes, or
- Scenario B: the parent has kept everything a mystery, refused to discuss what they might want in the event of disability or death, where the children (or spouse) have no idea of finances or assets, and where no one has any idea what to do next or where to go for help?
While the tragedy of a stroke might not have been avoided by legal planning, the tragedy of spending tens of thousands of dollars on measures necessary to protect the interests of the stroke victim could have been avoided with proper advance planning. Even more important than the goal of saving money for the family, is the need to conduct planning that effectuates the needs and best interest of the client. In this case, for example, it will be impossible for the stroke victim, at this time, to decide who gets the two handled family credunza or to decide whether and how to set up a trust. The three P’s have prevailed: Procrastination Precluded Participation.
I hope this post scares you! It scares me! This is the kind of situation none of us ever wants to find ourselves in, either as parent or as child. If you have not put your key documents in order, get it done now. If your parent has not put their key documents in order, ask them about it. Sure, it’s not a pleasant subject to think about. I personally don’t like to think about my death any more than you like to think about yours. It’s a terrible thought. But do everyone a favor. Face the monsters. Now, while you are healthy and are best equipped to face them.
Do just like your parent did when you were four years old and afraid of the dark in your room: Turn on the light, open the closet door, and look under the bed at that monster. Once you face it, you’ll find it’s a lot less scary than you realized. Draft the documents you need, put them in a safe place, and then you and all your loved ones will be able to sleep better at night, knowing that the monsters have all been put in their place.
I feel so strongly that everyone needs these documents, that I don’t want any of my readers to be without them. Find an attorney today and make an appointment for a “legal checkup” to discuss your needs and what legal documents you need. If you are a resident of South Carolina, I can help you with this. If it seems too expensive, consider the alternative. In the case of legal planning, two things apply. What you don’t know can hurt you, and also penny wise sometimes means pound foolish. Whether the planning process costs a few hundred dollars for a simple will, or whether it costs several thousands of dollars for a complex estate, trusts, and business succession plan, you will be providing not only peace of mind for yourself but also will be saving potential exponential costs down the road. If you are the type of person who says you don’t care what happens after you’re gone, consider that it may happen before you’re gone. Imagine the nightmare this caregiving child could have been saved by a bit of planning on the part of her mother. And if it happens after you’re gone and you happen to hate your kids, give it to charity. Because if you don’t care, I bet you fifty cents that somebody else will.
Put this on your “to do” list, and check it off today. If you tell me that you did it because of this blog post, I will be especially happy.Social tagging: elder law > Small Business Needs