Archives for elder law

Plan Ahead! Get a Legal Checkup!

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.

An Introduction to Elder Mediation, or Mediation in Elder Law Cases

Are you concerned about conflict in your family, or a potential conflict, that involves an elderly person, changes related to aging and increased vulnerability, or administration of a probate estate?  If so, your family may benefit from Elder Mediation.  Elder Mediation offers the same benefits as other mediation:  it is private, it keeps your family in control of its own decisions, it is voluntary, and it can be a very effective form of conflict resolution.  There are other factors which make Elder Mediation very different from other types of mediation.

Elder mediation is distinguished from other forms of mediation by the types of issues involved.  There are three recurring types of issues that tend to come up: (1) resolving differences about planning for future financial or care scenarios, including estate planning, business succession planning, and advance care planning; (2) helping to achieve family agreement during a crisis, such as when an Elder has fallen and decisions must be made quickly; and (3) mediation to settle disputes over estate matters.

In addition to being distinguished by types of issues involved, Elder Mediation is also distinguished by its complexity.  Conflicts are likely to involve complex legal and financial issues, multiple stakeholders, entrenched family dynamics, emotional challenges, and a vulnerable adult.  Elder mediation helps embattled family relationships overcome these challenges in two ways.  First, communication is controlled so that negative feelings can be expressed in ways that don’t damage relationships.  Second, the mediation process facilitates real communication and enables parties to address the core interests that are causing conflict.  The aged adult will also be included in discussions and in decisions to the fullest extent possible, taking into account their capacity to make decisions.

Attorneys, accountants, and elder care managers are usually the first ones consulted by a family seeking proactive help.  No matter how much expertise these professionals have, they can’t do their jobs effectively when divided families can’t agree on goals or when all concerns are not brought forward.  And, just one family member who disagrees with the goal can destabilize the most extensive planning and cause tens of thousands of dollars to be expended to defend a lawsuit.  This is where an Elder Mediator adds key value.  A neutral mediator can help the parties ensure that complex, preventive planning and care management takes into account all interests, is realistic, and is based on a unified family agreement.  When these measures are taken, there is much less likelihood of later challenge.

Sometimes the barriers to agreement can be profound.  Siblings may vie for favor, tempers may flare; distrust builds, and relationships suffer.  In emotionally volatile situations, the family needs a skilled, neutral party to help the family put aside old patterns of interacting and adopt new patterns, in order to the serious issues that every aging family will go through.  While a mediator is not a counselor, ideally an Elder Mediator will assist the family in overcoming old patterns of relating that are no longer working, so that the family can come together in a more unified way to confront the new or impending reality.

A family navigating the path of caring for an elder may also encounter unforeseen obstacles.  Sometimes, there may have been some condition which has been so much a part of the family’s life that it isn’t even noticed until something else goes awry.  For example, suppose one of the adult children has mental or physical disability.  That child may have been able to function by living at home or receiving substantial help from the parent.  As the parent ages and becomes less able to “take care of” that person, other family members may become more acutely aware that something doesn’t seem right.  Perhaps the issue is alcoholism, mental illness, or perhaps there is suspicion of financial misdeeds.  Unfortunately, sometimes adult siblings may have be forced to address these difficult issues at the same time they are having emotional and difficult conversations with or about their aging parent.  These times of crisis are challenging for families.  The presence of a neutral mediator can help keep the conversation on track.

Another  challenge of Elder Mediation is that various family members may have vastly different perspectives and ideas about what solutions to various challenges ought to be.  Sometimes what a parent wants is not what the same as what their adult child would want, and different members of the family may all want or expect different things.  Conversations can be difficult, and siblings may be forced to interact with one another under the rules of family system they left behind.  The CEO of a corporation may find himself being placed in the role of “little brother” or the sister’s concerns may be dismissed as too “selfish”.  The Mediator may need to assist these siblings not only in stepping outside their childhood roles and stereotypes, but also to encourage each to consult outside sources for a “reality check” concerning the veracity of their viewpoints.

Xan with Papa Bill

Families benefit from communication

These are just a few of the issues!  Ideally, an Elder Mediator will have flexibility, training, and intelligence to respond nimbly to challenges of each unique situation.

In selecting an Elder Mediator, seek a well seasoned mediator who has special skill and training specifically in Elder Mediation.  The mediator hopefully can tell you the name of a training institute where they studied this specialized form of mediation.  The person should have expertise in (1) legal and financial issues of aging (financial planning, care planning, business succession planning, guardianship or probate administration), (2) multi-party, complex mediation (siblings, in-laws, and grandchildren all may be stakeholders and necessary parties to a mediation), and (3) evaluation for competency and capacity, taking special precaution to ensure that the aged person, who may be a vulnerable adult, is accorded as much autonomy and decision making deference as his or her physical and mental capacity will allow.

Last but not least, a good Elder Mediator will run a tight ship.  When emotions get stormy, the seas can get choppy.  A good Elder Mediator will calm the waters by keeping the conversation focused and civil.  For it is only through listening to one another that a family can hear each other’s concerns, develop solutions that address those concerns, and come up with the best solution to address the needs not only of the aging adult, but of their caregivers and loved ones as well.

As difficult and challenging as conversations about Elder issues may be, wise is the family that has them.  While honesty, candor, and open conversation may be challenging and difficult, the more fully the issues are discussed, and the better the quality of conversation, the better the result will be.  Yes, Elder Mediation may be time consuming and complex.  Often, due to complexity of the issues and numbers of the parties, several meetings are required and two mediators may need to be involved.  Yet, consider the cost of doing nothing:  lack of care or illness or accidents on the part of a vulnerable loved one, lack of family support for a caregiver, financial exploitation, loss of a business or livelihood due to failure to plan for contingencies, distrust, failure to communicate, incorrect assumptions, escalating conflict, anger, and financial resources poured into attorneys and lawsuits.

A family can pretend nothing is wrong and “fake” peace, or it can sue each other and “break” the peace.  Or, it can deal honestly and fairly with the issues and truly, “make” peace.  The middle way – the way which acknowledges conflict and then works through it it in an effort to find authentic peace — is, by far, the best way.

Additional Resources

Association for Conflict Resolution, Section on Elder Decisions and Conflict Resolution, click HERE

A page on my site with links to other articles about Elder Mediation, click HERE

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