Families and Caring for an Aging Loved One

In this episode, John Ross and Lisa Shoalmire discuss issues regarding dealing with the estate and property of deceased loved ones to help avoid some family conflicts.

Episode Transcript
Lisa
Welcome to Aging Insight. I'm Lisa Shoalmire, and this is my partner, John Ross. And we're elder law attorneys, and we are based right here in the Ark-La-Tex. And so we are able to give people in our community answers to their questions about aging right here at home. And our big idea for you all is that you get the information you need to be able to age and retire on your own terms. So we're here to give you that information to avoid conflicts, to help you plan for that retirement and those aging years, to help you not be a burden on your friends and family, and to stay in your home as long as you can, and to not go broke in the process. So a big part of all of this with Aging Insight has to do with one of our biggest resources that folks that are aging have, and that is typically their families. And so we wanted to discuss issues that come up within families when we're dealing with caring for an aging loved one, and also dealing with the estate and property of that now perhaps deceased person, so that we can avoid some family conflicts.
John
That's the goal. In our practice, we have seen some very unfortunate situations where as that parent or loved one, whoever they are, as they age, as they become more dependent on others, as they need that extra help, as the expenses go up, and the care needs go up, and all of these other things that the stress of dealing with that, the stress of the caregiving, the financial stress, and what's going on with the family, sometimes you end up with arguments, suspicions, all kinds of real ugliness. And in some cases, that ugliness can wreak havoc on the family, and I'll just tell you, it's not good for anybody. And so what we like to do is we like to try to figure out what are some of the ways that you can avoid some of those conflicts, and that's what the program is gonna be about today.
Lisa
Yeah, right. So, John, I really wanted to start out first by saying, probably the most important thing you could do, and the first thing you need to do is... We're all on a journey and we're all gonna get older. You're gonna be older tomorrow than you were today, and there's just, everybody is on that same path. The biggest mistake I see people make is that they just don't take the time to make some decisions and plan while they are at the best they can be, which maybe the best you can be is today. Maybe you're a little more forgetful tomorrow, or a little weaker tomorrow, so that's the first issue, because what I see most frequently is an individual has waited until they are in a more compromised position, they're more dependent, and then they want to try to make some of these decisions, and sometimes they just don't have the energy or the will to make the decisions that they would have made if they had been a little bit younger when they started that process.
John
Yeah, there's really no question about that. When you're making decisions, you've got to do it ahead of time, and here's where a lot of time... You know this, this is not anything new. You've been thinking about this, you've been saying to yourself, "Oh, I need to make some decisions." You might even go so far as to tell somebody. You might be talking to that daughter, or talking to you and your spouse, and you're telling each other what you want. The problem is that when it comes time for those people to actually step up and start helping, or start doing things, having told somebody doesn't cut it.
John
In so many cases, you've got to have it in writing. If you want one daughter to be able to make healthcare decisions for you, if you want a son to be able to write cheques or make business decisions, or talk to the phone company, or sign your tax return, those decisions. It's great to tell that child that you want them to do it, but if you don't put it in writing, then imagine you've got these two kids, and one of them is saying, "Well, mama told me that she wanted me to be in charge. Well, that doesn't make that other child feel very good. They're already on edge and they're thinking, "Well, why is my brother saying this? Is he just trying to get to mom? Is he trying to cut me out? You know, mom never told me any of that." So it's got to be in writing. It's one thing to tell people. And communication is key. But you've got to put those things in writing. You've got to say who you want.
Lisa
Yeah. I think if John and I had a dollar for every time someone came to us and said, "Well, you know, Papa told me," or "Mom told me this or that." If we just have a dollar every time someone came in, we'd be retired right now. [chuckle] It's a frequent occurrence, and our answer is always the same. I understand that you were told that however it's meaningless. It doesn't mean a thing particularly if your brother or sister or cousins are fighting about it. What somebody said at Thanksgiving two years ago just does not matter. I don't know that I could say that any more clearly.
Lisa
Yeah, so we'll take a little break here, and when we come back, we're gonna talk about how your individual family dynamics really should be taken into consideration as you make some of these decisions.
John
Welcome back to Aging Insight everybody. I'm John Ross, this is Lisa Shoalmire, and you're watching Aging Insight. And today, we're talking about ways that you might reduce family conflicts as it relates to you and your aging process. And before the break, we were talking about, for example, naming people as an agent on powers of attorney. And we, a lot of times, we have seen this particular thing cause animosity between, in particular, children where you have multiple children and trying to figure out who do you appoint. And so, for example, you might have one person that you want to do the job, that you trust to do the job. So the first thing is putting it in writing. We've already talked about it. It doesn't matter what you say, you've got to put it in writing. But the second part is is making it clear that that's the person you want and whether or not any of these other kids have any say-so in it.
Lisa
Well, a lot of times, we talk to seniors, and they're worried that they don't wanna disappoint a child. They don't want a child to think that the parent loved them any less because they didn't appoint them as a decision maker or someone to handle their business or their medical decisions. And so, the seniors are really reluctant to make these decisions and put them in writing. Because they feel like if they put it in writing and the other children see it, then that's gonna cause a problem. But believe me, they'll get over that. You need to make the decision on what you think is best going to assist you, who you trust to handle certain business affairs for you. Make the decision, put it in writing, everybody will get over it, but then you will have in place what you are most comfortable with. So, some of the other children say, "Hey, mom, dad, just put us all on there to make decisions." And, John, is that a good idea or are there certain family situations that maybe that works for, maybe it doesn't?
John
If you've got the type of family dynamic where everybody gets along marvelously, the one thing about say, a power of attorney, is that we don't know when that person or people are gonna need to do things for you. We don't know where you'll be. Maybe you're here locally, maybe you're on vacation, maybe you're visiting the child that lives in Minnesota, and so we don't necessarily know when or where you're gonna need that assistance. And if you have children that get along very well, having a situation where they each could, acting alone, make decisions for you if you can't do it, that can be a very flexible, very easy situation. But notice that that is probably, that's one of those situations where it absolutely has to be a situation where the family gets along marvelously. And be honest about it, you know your family better than anybody. You were there when they were kids. You know whether or not they can get along.
John
You know whether or not they work together. Do they talk all the time? Are they more like friends, are they more like friends than family? Those sort of things. If that's the case, great. But don't make this sort of decision, where I have a person, they'll come into the office and they'll say, "Well, I've got two kids and these two kids don't get along at all. And they can never agree on anything hardly, so I wanna appoint both of them where they have to agree to do anything. And that way no one of them can do it, they have to agree." Well, let me tell you what the result is of that. The result is that when you need somebody to act for you, nobody can do it because you already know they can't get along and yet you forced them into a position where they have to. And just because you want them to doesn't mean they're going to do it. In fact, what ends up happening is since neither of them can make a decision, they can't agree, they can't get along, it'll ultimately end up landing in the court.
Lisa
That's right. And we have a philosophy that frankly if you're at the court house steps, then somebody's already lost something, whether that's the attorney fees or sleepless nights or whatever. So we always try to avoid that if possible. And you can avoid that if you just, if you're just honest with yourself in making decisions about what kind of assistance you wanna get, from whom in your family who's capable of doing that, who's capable of working with others. Just be honest with yourself and get that in writing.
John
That's right. And one of those situations is that I'll have some folks and they'll come in and they'll say, "Well, John, okay, I've heard you say be honest about it and I'm gonna be brutally honest about it, which is I don't trust any of them to do it. Or I think that they will not get along. And that it doesn't matter who I appoint that the others will be unhappy about it." There's this assumption that we have to appoint those children. That just because of the fact that they are the children that they should be the ones in charge if you can't do it, but that's just not the case. You get to make these decisions. It doesn't have to be the children and no matter how much they pressure you, it still is not their choice. It's your choice. If you have individuals that you trust, then appoint those individuals keeping in mind, of course, that if those individuals are close to your age then they may be having the same health problems you are at that time. If you don't have individuals though, there is another option. And of course, that is going with a third party like a bank, or a CPA, or somebody in the financial services industry who is used to managing assets and making sure bills are paid.
Lisa
Yeah. So I like you bringing up that point that it doesn't have to be your children who are appointed as decision makers if you can't make your own decisions because I've had quite a few folks tell me that their kids are still finding their way in life or they've messed up their own lives so much that they just don't trust the kids or they don't feel like that they could handle dealing with a parent's health issues and aging issues. So it's good to know that you do not have to appoint family members to do this. But, now, so we've been talking a bit about appointing decision makers if you become in a state that you can't make your decisions as well but one of the things, the other place we see a lot of family conflict is after you pass, and again maybe you've told some family members some things about who you wanted to have what or you didn't make any plans really at all, and now that the kids are really at it over property and over stuff. And, you know, John, years ago, we had a client say to us that "You never really know somebody until you share an inheritance with them." [chuckle]
John
Absolutely. That really is true. And I've had people in the office who are just... They were just shocked at how their brother, sister, aunt, uncle, whoever it was, how they behaved following that death. And you've gotta understand that with the stress of losing that person that you care about with their own personal issues, you just never know how that situation is gonna turn out when the time comes. So, one thing you need to do is look down the road and say, "Okay, are there some things that I could do now that would maybe keep that fight from happening then?" And there's things that you can build into your documents, there's things that you can build into your state planning to help that. So, why don't we take one more break, and when we come back, we'll talk about some of those suggestions.
John
Hi, I'm John Ross, elder law attorney and board member for the Alzheimer's Alliance, and welcome to Our Place. Our Place is a day program designed to provide rest and relief for the caregivers of people with Alzheimer's and related dementias. Our Place is a safe environment where our friends benefit from socialization in a home-like environment. Alzheimer's is devastating and affects over 17,000 families in our area. To find out how Our Place can benefit you, please visit our website.
Lisa
Welcome back to Aging Insight, I'm Lisa Shoalmire and I'm here with John Ross. And today, we've been talking about avoiding family conflicts. And so far, we've been talking about do your planning while you're at your highest and best, put it in writing. We've also talked about be honest with yourself about the dynamics of your family and who is better equipped to be that responsible person that can assist you as you age. And then in this last segment today, we wanted to talk about some tools you may have to help make sure that you avoid family conflict, even after you're gone.
Lisa
And probably one of the biggest mistakes I see people make is if they have a contentious family situation. As a person gets older, it's amazing to me how often younger family members will start talking about, "Well, Mom, when you're gone, I would like that curio cabinet and your china." And "Hey, Dad, when you're gone, I wanna make sure and have that.30-06 that you took me hunting with for the first time." And one of those discussions again are had verbally. But if children are in conflict, a lot of times, seniors particularly, as you get older, I think you try to avoid conflicts even more than maybe you did when you were younger. And so a lot of times, seniors just avoid doing the planning, having these discussions, and then they say, "You know what? My daughter, Jeniffer, she handles her brothers and sisters fine. I'm just gonna tell her that it's gonna be all on her shoulders and I'm gonna tell her what I want. She'll take care of it. I don't wanna have to deal with everybody, and that'll be the end of it." And, John, does that work out very well? [chuckle]
John
There's a couple of things there. One, is if you do have somebody that you really trust and that you think will do a good job, that's great. But give them some direction. Tell them what you want them to do and then of course put it in writing. Just saying, "Oh, well, I know that they'll take care of it. They'll do it the way I want." Well, a couple of things. One, they may perfectly well be willing to do that, but you're assuming that that person is still around. Something could happen and that person ends up not being able to handle the stuff that you've lined out for them. They may not be able to be that executor or that trustee or that agent under that power of attorney because maybe they have predeceased you or maybe they've had their own health issues.
John
And so, if you have it in writing, you can put out some instructions as to what you want that person to do, and then if that person's not around, then the next person can still read those instructions. Of course the other side of this is to make sure that the person that you're choosing actually wants the job.
Lisa
Yeah, that's right. So often, if you have a contentious family situation and maybe your good friend and neighbor that you feel like knows what you want, you put it in writing, they're gonna do it. But you know what? If after you're gone, this person who was your good friend who wants to honor you by doing this for you, but they get attacked from all sides, by your children or grandchildren, sometimes the legacy of your friendship is just not worth the day-in-day-out attacks as they're trying to finish up your business. And they may not want the job or they may not keep the job if it really becomes a problem.
John
Right. So you need to have the conversation with the person that you're appointing, make sure that they actually want the job, and if they have some concerns. A lot of times, these jobs, being a trustee, being an executor, a lot of times there's a lot of responsibility behind those, there's lots of work to be done. Are you going to compensate them? Are you gonna pay them? Or do you want them to do it for free? But either way, these are some of the things that you need to think through.
John
Now, when it comes to actually... One of the phrases we like to use is "Taking the dog out of the fight." Which basically the idea is is are there some things that maybe you can put in there to help resolve problems before they even come up? And there are some things that, whether you're talking about a power of attorney, whether you're talking about a will or a trust, there are some things that you can put in there. One of the most common is the idea of a no contest clause. And this would be a phrase, for example, in a will or trust that says that if anybody fights about it, they lose their share. That can be pretty harsh.
John
Now I will tell you that they're pretty hard to enforce especially under the current law. But sometimes just the threat, just the idea, can bring people and make them a little bit more amenable to negotiations. But the other thing is there's some other things that you can build in, mediation clauses requiring that anybody sit down with a mediator before filing any of those sort of suits. Having independent third parties like, for example, appointing a geriatric care manager who can give some independent advice related to your medical care, that maybe that can help resolve some of these disputes between what one child thinks is best and what the other thinks is best. So, there are some things if you anticipate these sort of problems that you can build in to that planning, but it's all gonna be very unique to you.
Lisa
That's right. I would have to say that's why there's no one size fits all, there's no form out there, there's no cookie cutter document out there because every family is different. And the dynamics of your family have a big impact on the type of planning that you need to do as you age, and then the planning you need to do for your estate to deal with your property after you're gone.
John
That's right. Well, you know, we can only cover so much in our short period of time, right there with you. And so, if you have more questions, you can always call us during our live radio show which is every Saturday at noon on 107.1. And that's live call-in radio. You can call in and ask questions about what you heard on the show, and we can give a little bit more detailed answers. Of course you can always find us on Facebook, at facebook.com/AgingInsight, and you can find me on Twitter @TXKElderLaw.
Lisa
Alright, well, we'll see you next week for another episode of Aging Insight.
John
Bye bye.

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