The Adult Only Child And Two Impaired Parents : Know The Legal Essentials
Mandy, age 55 is an only child who lives two hours away from her parents. They are in a rural area, a small town with few resources for seniors. Her Mom has recently been diagnosed with Alzheimer’s disease. Her father, who has been depressed much of his life, is having trouble coping with his wife’s diagnosis. Mandy feels like the world is crashing in on her. She has her own family to manage and now the burden of both parents is creating tremendous pressure. She is overwhelmed and not sure what to even consider doing first.
In consulting at AgingParents.com with Mandy, an important question we ask is this: who has legal authority to act for and with your parents for finances and healthcare decisions? Mandy found the estate planning documents her parents had created and discovered a serious problem. They were flawed, in that each parent had the only authority to act on behalf of the other, with no alternative plan! It was obvious that Mandy’s mother couldn’t act on behalf of anybody with her dementia advanced to the point that she could no longer remember anything that happened yesterday. She could not possibly make competent financial decisions for her husband.
Her father was so depressed he just wanted to throw up his hands and hide. But he was not as impaired as Mandy’s Mom, though he appeared to be declining mentally too. Mandy had to act quickly to get the estate documents corrected. She was the one they had always planned to appoint on their behalf for decision-making, as they had no other relatives who could do this job. They had failed to get proper planning done by the old lawyer they had used years before. He had not done right by them and he was gone. Now there was a sense of urgency.
Advice to Mandy was to get a new, competent lawyer her father could work with and encourage that lawyer to ensure that Mandy was appointed as the agent (also called “attorney-in-fact”) on the Durable Power of Attorney for him as well as for Mom. It would be his decision and his wife’s decision without Mandy present in meeting with a lawyer. Fortunately he was willing. Mom was also willing, well aware that she needed Mandy’s help. She was “with it” enough to be able to make that decision to appoint Mandy as her agent. Both parents also needed to appoint her as agent on their Advance Healthcare Directives, which are sometimes called healthcare proxies or power of attorney for healthcare.
Mandy’s parents needed a lawyer who understood the failings of the prior one who did not ensure that anyone was appointed to take the Dad or Mom’s place if he or she became cognitively impaired. Mandy helped them do the research to find a qualified estate planning attorney. They had to travel out of their small town to do it, but at least Dad could still drive and he got there. The couple did create a new Durable Power of Attorney and Advance Healthcare Directive for each of them and Mandy was the appointed person for both.
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This gave Mandy a huge feeling of relief that at least she could stop them from doing anything dangerous with their money. She could also honor their wishes about their healthcare and advocate for them as necessary. Mandy knew that her journey of looking out for their welfare had just begun. She was determined to persuade them to move closer to her, where there were many more resources for aging parents like hers. She raised the subject of a memory care facility, and Dad agreed to at least consider it.
Even for those who are not an only child but perhaps the only responsible adult child, this issue is very important. If you or anyone you know with aging parents has never asked about nor looked at the parents’ estate planning documents, particularly the Durable Power of Attorney and Advance Healthcare Directive, ask to see them. Do not accept the statement “everything’s taken care of” because that’s what Mandy’s Dad told her. Because of her Mom’s diagnosis she was able to get past her Dad’s dismissive attitude and find out the truth. Everything was definitely not taken care of!
As her parents declined cognitively, Mandy would have had a dreadful time without any legal authority to act on their behalf. She would have had to go to court, an expensive proposition, to get such authority if no one was appointed. If she had not found out when she did that no one was going to be in charge if both parents needed her assistance, it would have turned into a legal mess. Once her parents got past the point of being able to understand the legal paperwork. losing the cognitive ability to hire an attorney, she would have been left with no choice. She would have had to ask the court for an order declaring that they were both unable to manage their finances and that she was to be their guardian (called conservator in CA). That’s a last resort. If you can avoid that path, do so. If you think it’s uncomfortable to ask your aging parents about these documents, imagine how uncomfortable you’d be having to appear in a courtroom, describing to a judge how impaired your loved ones are, in front of them. Take heed and ask the questions you need to ask. The time is now, when your aging parent is still competent enough to change what paperwork needs fixing, before it’s too late.