So often, we hear about folks declaring that they’d like to live to be 100. Most of us are probably more likely reach the average life expectancy of a little over 78 years for men and about 81 years for women in the U.S. In places where excellent healthcare is available more people surpass average life expectancy and more often reach their 90s and beyond. Is this a great thing?
stubborn old man
AgingParents.com
Take the case of Bertrand, age 91, well fixed financially. He is confused but still driving around and participating in some activities. He loses track of his bills. His memory is shot. He can’t take care of his bedridden wife, but he hires helpers and they take advantage of his confusion. His only son, Dominic, lives an hour plane flight away but he has his own family and his own problems and can’t be available at every moment. Bertrand authorized Dominic, to be his agent on his Durable Power of Attorney to help with finances. When his son tried to step into one of Bertrand’s messes, Dad pushed him away and said he would not allow it. What is Dominic to do?
The burden on Dominic is overwhelming. Of course he wants his dad to have a long life, but now that creates problems he never thought about. He sees his father showing signs of dementia, but Bertrand refuses assistance with the very thing most needed: managing money. That leads to the danger of Bertrand’s assets being depleted, as no one is keeping track of them. Dominic called his father’s estate planning attorney to ask what to do.
His attorney can’t make Bertrand honor the Durable Power of Attorney he signed, as anyone can revoke such a document as long as one is still competent. Bertrand is at the last edge of competency to handle money but he’s too stubborn to admit it. And he’s also too stubborn to give up control and allow his son to help him.
Is there a way out of this dilemma? Perhaps. Bertrand’s physical health is fragile, as he has numerous diagnoses and goes to his doctor often. Dominic also is appointed on his father’s Advance Healthcare Directive, which gives him the opportunity to speak to Bertrand’s healthcare providers. He can call the main treating doctor and explain the situation. The estate planning lawyer told Dominic that with a letter from that doctor stating that Bertrand is incapacitated for managing his finances, Dominic can take over the family trust even if his Dad doesn’t want him to do so. That’s how the trust was written. Now Dominic has to get the letter and break the news to Bertrand, which is likely to set off a firestorm from Bertrand. Dominic knows that taking this next step is the only way to keep his parents’ finances safe. He is at least in good position that he just needs one letter from dad’s treating doctor to move forward to protect his dad.
Diminished financial capacity is an issue many adult children face with parents who live to be 90 and more. Mental capacity to manage money may not last for an entire lifetime, no matter how good an aging parent was at this before. At times, the children have to take over against the elder’s wishes. Some estate planning attorneys correctly predict this possibility and make the trust language easier to work with when a parent has to be removed from the position of authority. Other lawyers put horribly burdensome language into the trust, almost forcing the adult children to go to court in a pitched battle between parent and child when the parent is cognitively impaired. Here at AgingParents.com, where we mediate family conflicts like the one between Bertrand and Dominic, we see the dangers of badly written trusts. What does your parents’ trust say about possible incapacity? It is well worth a discussion!
Here are some points to find out about and correct if you need to do so.
- If your aging parents have a trust, invite a discussion about what would happen if a medical condition rendered an aging parent unable to competently manage finances.
- Look at the trust language about “incapacity”, a legal term. It is typically defined in the trust. If it says anything that necessitates going to court to have a judge say the person is “incapacitated”, that’s a red flag for bad trust language. Who wants to take a parent with dementia to court for all the world to learn that he or she is incapacitated? I don’t know what my brethren lawyers are thinking when they put this stuff into a trust!
- Dementia is a real risk to every older person. No one gets it overnight and it’s common to not understand that one is actually impaired. That is the danger: it impairs money management along with lots of other things. Any trust should contain way to remove an impaired, unaware parent from managing the trust (assets, cash, etc.) in a way that is private, and does not require two doctors, going to court, or other dreadful burdens on the ones who need to remove an aging parent from the seat of control.
- Ask your parents what they would want if a situation like that of Bertrand and Dominic came up. Ask them to imagine that they had to step down but couldn’t understand why and that the adult child had to legally remove them. Look at their trust with them and dig into the piece about incapacity, and “removal of trustee”.
- If your aging parents have a trust with burdensome language in it about incapacity, ask them respectfully to consider your responsibility and have that trust fixed (“amended”), to lessen the burden that might happen to you. That means going to an estate planning lawyer and revising that language.
Full Article & Source:
Aging Parents And Longevity: The Big Issue That Affects Families And How To Fix It
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