Planning for incapacity in blended families is essential

Dana and Jerry have been married for 25 years. Both have children by previous marriages. Jerry’s three children never forgave him for divorcing their mother and have never accepted Dana. Consequently, Jerry and the children rarely see each other.

Jerry has been diagnosed with Alzheimer’s and is currently in middle stage of the disease with serious memory problems. Dana recently acquired home health services to assist with Jerry’s care.

Jerry’s children are in their fifties and scattered across the country. Concerned could take action against her, particularly if there are conflicts over Jerry’s care and his property, Dana has not yet informed of his condition.

Dana Should Seek Legal Counsel to Protect Herself

Dana should seek legal counsel to understand her options. The options available will depend, in part, upon the steps Jerry and Dana have taken before he developed Alzheimer’s. If Jerry has signed a Statutory Durable Power of Attorney (POA) and a Medical Power of Attorney giving Dana the power to manage his financial affairs and make medical decisions for him, Dana should take over and do so.

Although Jerry’s children might challenge the validity of these documents on the grounds that he was not competent or unduly influenced by Dana when he gave the power, the expense of such a challenge may be a deterrent in Dana’s favor. Also, if Jerry had an attorney prepare the POA and he signed it when there was no question of his competency and Dana was not being present when the documents were prepared or signed, she would be in a good position to prevail against a challenge by the children on these grounds.

If Jerry has lucid moments in which he retains the capacity to contract, Jerry could give Dana the power to handle his legal affairs and make medical decisions on his behalf even now.

If Jerry has a valid will naming Dana as executrix and leaving her property, she should safeguard that will. If Jerry does not have a valid will, Dana should discuss with counsel, her rights in accordance with the laws of descent and distribution. The lawyer can explain the property that Dana will receive. Jerry’s children will inherit the rest.

Additional Steps Could Have Been Taken Prior to Jerry’s Diagnosis

In the instance of blended families such as theirs, an irrevocable trust can be an effective tool to protect both the spouse and the children by a previous marriage.

In blended families - particularly if there is animosity toward the non-parent spouse - each spouse should designate through a Declaration of Guardian in the form provided under Texas Estates Code § 1104.201, the person(s) that they do and do not want to be named guardian of the person and guardian of the estate if the need for a guardianship arises.

If one or more of the children applies to be appointed guardian for Jerry, Dana can join the suit and request to be named guardian instead. In accordance with Texas Estates Code §1104.102, Dana is the preferred guardian if more than one person is eligible.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She lives and practices in beautiful Somervell County, near Chalk Mountain.

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Planning for incapacity in blended families is essential