One of the most frustrating parts of attempting to be a care giver, or even an advisor, to an elderly parent is finding that our help is not wanted even when it is clearly needed. Anyone who has raised a teenager is familiar with this dynamic. Most teenagers eventually muddle through. The older adults in our lives may not, with disturbing consequences.
How do you help the parent who doesn’t want your help?
Will. Two-thirds of Americans, and half of Americans 50 and older, have no Will. There are partial workarounds: a family limited partnership or a revocable living trust. Both require a Will to pour over into the partnership or trust things which were not contributed to it before death. ¹
Some people who do have a Will and even some who do not use the prospect of inheritance to reward or punish those around them. We all want to be loved. We all want to be cared for. Money cannot buy love, but it may give people incentive to take care of us or to do other things we want. The difficulty is that your relative may try to buy attention, to punish imagined slights, or simply to assert that he still has power at a time when he is becoming frailer and more dependent. You can buy into the drama and the family discord. You can tell him that you do not want him to leave you anything. You can even tell him that you will disclaim any inheritance, knowing that it will then pass to your children. If he realizes that he has no financial power over you, he may accept that whatever you do for him you do for other reasons, making for a much better relationship. Even if he tries other levers of influence, by lowering the noise level, you may help everyone better navigate his final years.
Medical Care Documents. People who do not have a HIPAA Medical Information Release, a Medical Power of Attorney or a Durable [Financial] Power of Attorney, who name the wrong people as agents, initially or by changing them, or who make foolish choices but do not lack legal capacity (so are not eligible for guardianship) create more serious, dangerous, and even life-threatening situations for themselves and others.
Every Texas adult needs these documents and may also want an Advance Directive to Physicians, which some people call a “Living Will.” Anyone can be in an accident and arrive at the hospital unable to direct their own care.
Everyone is entitled to decide what happens to their own body. That is why, in Texas, an agent under a Medical Power of Attorney is only authorized to speak when the person themself cannot and then only to communicate what the person would say if he could speak. That is why, in Texas, choices in an Advance Directive to Physicians override the agent under a Medical Power of Attorney and why, if you can communicate, you can countermand your own Advance Directive to Physicians.
Self-Neglect. If your mother-in-law lies to her doctors, refuses to take her meds, eats junk food and then only sparingly, and does not shower or change her clothes for months, what can you do? You could start by reporting her self-neglect to Adult Protective Services. Adult Protective Services might investigate. Adult Protective Services might offer her services. But she does not have to accept them. In Texas two or three self-neglect cases a year prompt Adult Protective Services to apply for a guardianship (such as a cat lady with dozens of starving and dead cats). If your mother-in-law lacks legal capacity to provide for her food, shelter and care, you can apply to become guardian of her person.
If you move her to an assisted living facility, better food would be available. But would she eat it? If she needs scheduled nursing, physical or speech and language therapy, her doctor could write a prescription for this and Medicare would also pay for it and for a certified nurse’s assistant. That person could come perhaps three times a week to help her shower and change her clothes. But would she accept this help?
If you became the guardian of her person, you could decide where she lives, whether she marries or works or joined the armed forces or drives a car. You could take her to a psychiatric hospital for an intake examination but not commit her. You could agree to medical care but not make her swallow pills.
Sadly, sometimes you can do nothing but grieve.
Durable [Financial] Power of Attorney. Everyone needs someone to pay the bills when they cannot. But even though a Durable Power of Attorney does not take away a person’s right to act and, in Texas, requires that your agent report to them,² and even though we think we name people who will always have our best interests at heart, a Durable Power of Attorney is a license to steal. Naming a family member is no protection. Studies find that 70-90% of reported theft under a Durable Power of Attorney is committed by a family member. That may be because most of us name a family member. That family member may be well-intentioned. He may borrow and be unable to timely repay. She may decide that we need to sell our house and move away from our doctors and immediate family.3
We may try to protect ourselves by naming co-agents and specify that they must act together. This may lead to more arguments and risk nothing happening when we need someone to act.
We may want to protect ourselves by having one Durable Power of Attorney with limited access to funds to provide for day to day care and another Durable Power of Attorney, with co-agents, to access investments and home equity.
We may want to protect ourselves by including in a Durable Power of Attorney instructions on what to spend first and for what it should be spent.
Trusts. We may want to protect ourselves by creating a Revocable Living Trust with a Trust Protector looking over the shoulder of whoever steps in to act for us as trustee when we can no longer manage our finances. We can use it to specify what care we want and where and who should review it.
We may want to also create an Irrevocable Trust which we ourselves cannot touch. This can protect us from romance scams, from credit card scams and, importantly, from spending large amounts on QVC or amazon, from repeatedly giving to every charity on the planet and from other choices which will imperil our well-being. Renee Lovelace, CELA, reminds us that Ulysses had himself lashed to the mast with his ears plugged to resist the calls of sirens. We may do well to follow his example.
¹ Not having a Will is only a good idea if everyone in the family will continue to cooperate and the person leaves no more than a home, up to $60,000 in personal property and up to $75,000 in other property, such as a bank account. Then, if there is no Will, all the heirs and two Witnesses who will not inherit can sign an Affidavit of Small Estate and probate (prove) the estate less expensively than probating a Will.
² It should also require an accounting to be provided to your tax preparer and, on request, successor agents and perhaps certain family members. Just knowing that someone can look over their shoulder may prompt your agent to think things through and act with more caution.
Elder law attorney, Terry Garrett, is a member of the National Academy of Elder Law Attorneys and is an Approved Guardianship Attorney. She assists people in elder law, estate and special needs planning, guardianship and settling estates. She graduated with honors from Cornell University. She was on the Dean’s List at Wharton Business School. She earned her J.D. at Columbia Law School, receiving the Parker Award and a Mellon Fellowship.