learned to work. It takes a practical, hands-on approach that is designed to help you get moving, get your parents and family moving, and reach your estate-planning goals.
Documents that have more or less the same legal effect have different names in different geographic locations. This is because laws having to do with wills, probate, and incapacity are almost all made at the local level, as opposed to the federal level. In this book we use the terms “Enduring Power of Attorney” and “Health-Care Directive” but those documents are known by other names as well, as the following two lists will show. These lists should help you relate the information you see in this book to the information you hear or read about locally from lawyers, accountants, in magazines, or other sources.
Enduring Power of Attorney is also known as the following:
• Continuing Power of Attorney
• Durable Power of Attorney
• Lasting Power of Attorney
• Mandate Given in Anticipation of Incapacity
• Power of Attorney for Property
Note that in this book, the word “attorney” does not refer to a lawyer.
Health-Care Directive is also known as the following:
• Advance Directive
• Advance Health-Care Directive
• Durable Power of Attorney for Health Care
• Health-Care Proxy
• Living Will
• Patient Advocate Designation
• Personal-Care Power of Attorney
• Personal Directive
• Power of Attorney for Personal Care
1
Addressing Difficult Topics
It is not really surprising that people do not want to talk about making their wills. Planning a will forces people to think about their own mortality. We all know that one day we will pass away, but most people do not want to think about that if they can help it. The reluctance to talk about it only increases when someone is terminally ill or critically injured, because the possibility of losing a loved one is uncomfortably close.
Talking about planning for possible mental incapacity is even harder. The fact is, our population is aging. The baby boomer generation is nearing retirement age. The parents of the boomers are now elderly. People live longer now than they ever have, thanks to medical and technological advancements. Living longer, though, does not necessarily mean living your whole life with full mental and physical abilities intact. This is where the planning becomes important and the topic becomes touchy.
The knowledge that one day a parent could have to live with mental or physical impairment leaves many of us in a difficult situation in which we know we should take action, and we are willing to take action, but we are not sure how to do what we need to do. Many people have brought up subjects like moving a parent to a long-term care facility, helping out with banking, or making wills with sincere concern for an aging relative, only to find that their concern is unwelcome. The parents do not always want to do any planning, or even talk about it. The well-intentioned person is shut down, no help is accepted by the parents, and to top it all off, now there is resentment or tension between family members.
With this in mind, you may have come to the realization that your parents or other aging relatives need do some planning while they are still healthy. Or, it might have become painfully obvious to you that a parent is struggling with the onset of physical illness or mental lapses due to the process of aging. With their best interests at heart, you may ask your parents whether the necessary documents have been done. If you have asked this question, you may have discovered that your parents have no legal paperwork or inadequate paperwork in place. Most people fail to prepare the legal documents they need. With the onset of illness or dementia, the time for preparation of documents is running out.
1. Troublesome Topics That Need to Be Discussed
Everyone is different so there is no way to predict every subject that is going to upset every person. However, there are some specific topics that are almost always hard to talk about and which are of special interest to aging parents and their families. These topics are mental capacity, money, and will planning. Each of these can be problematic for a family, sometimes extremely so, but finding the right legal solution will resolve those problems to a large extent.
Finding the right legal solution does not necessarily involve putting sweeping changes into place immediately; it means understanding the problem and having a plan in place to deal with it when the need arises. It means knowing in advance who is ready and willing to take on responsibilities for other people. It means having the right paperwork in place so that when medical or financial crises occur, they are not made worse by delays, challenges, or requests for clarification.
The topics mentioned in this section — mental incapacity, money and insurance, and will planning — will be the main focus of this book. They are the subjects that will be referred to in later chapters, which talk about holding a conversation with your parents or a meeting with your family. You will notice that although these topics are listed separately here, in real life they overlap and blend together. This means that the legal solutions to deal with them may also overlap.
1.1 Mental incapacity
Mental capacity is the ability to make reasonable decisions. What is considered “reasonable” can be open to interpretation, but most people would consider a decision reasonable if it takes into account all relevant factors known to the decision maker, and takes into account the possible consequences of the decision.
For example, most of us would consider giving a cash donation to a charity a reasonable decision, but not if the donation was so large that it left the giver no money to pay for rent or food. A person who did not realize that giving his or her money away would cause financial hardship for himself or herself would probably lack mental capacity, particularly if this inability to manage money was a long-term pattern.
A decision is not considered reasonable if it is forced on a person by way of verbal threat or physical intimidation. It is not reasonable if it needlessly harms the person or his or her family members who are dependent on him or her.
A decision does not have to be popular to be reasonable, which is an important point when it comes to mental capacity. Every one of us has at some time made a financial decision that made someone around us unhappy, such as overspending on a gift, or buying something frivolous. That is simply human nature to make the occasional poorly thought out, impulsive decision, particularly among younger people.
However, it is not uncommon for the adult children of an aging person to be unhappy with the decisions being made by their parent, particularly financial decisions. Sometimes this leads the children to attempt to use the legal system to control or stop the parent’s financial independence. This is where it becomes necessary to tell the difference between, on one hand, a parent who cannot make good financial choices and, on the other hand, a parent who can make good financial choices but whose choices are somewhat unusual.
For example, a person who continually buys cans of dog food that are simply stored by the case in the basement because he or she does not remember that he or she does not have a dog is not making good financial choices. On the other hand, a person who takes skydiving lessons four times a week might seem odd to you but is, on the face of it, making a good choice of how to spend his or her money.
The fact that your parent makes a decision that you do not like or agree with does not mean that your parent has lost mental capacity. It is his or her money after all. Your aging parent is free to make as many unpopular decisions as he or she wishes, as long as those decisions are not the result of poor