By Hook Or By… September 2018.
By Timothy S. Barkley, Sr.
The phone rings a lot.
“My sister who lives with Mom never lets me talk to Mom or see her. When I call she hangs up the phone, and if I come to her house she pretends nobody is home. She even disconnected the doorbell. I think she told Mom I was dead. I just went to the adult day care that I heard Mom was at, and she was there, so I took her out to lunch. She cried and told me she missed me and wanted me to take care of her. Can we get a power of attorney?”
Meanwhile, across town in another lawyer’s office, the phone rings:
“My brother – the druggie nobody has heard from in years – just took Mom out of her day care. He told the staff he was taking her to lunch. Now she’s talking about she signed some papers, but doesn’t remember where she went or what she signed. He won’t answer texts or calls. I don’t think Mom is competent – she’s on medicine for Alzheimer’s. If she signed something, is it valid?”
Mom confides in the social worker at the adult day care:
“My daughter is telling me I need to be in a nursing home. I know I have trouble remembering things sometimes, but I can still live in my own home! She wants me to be evaluated and I know she just wants to put me away. What do I do?”
These are all actual situations that have come to this writers’ office. For better or worse, our enlightened society has not curbed the human tendency to take advantage of others, even others whom we profess to love. And the unprecedented number of divorces, remarriages and creative family arrangements of the past half-century have left in their wake a vast population who has little or no connection with their parents or what we used to call their “siblings,” the other natural objects of the bounty of an aging or deceased parent, step-parent or otherparent.
There is a rising tide of acrimony in elder law, revolving sometimes around money and sometimes around affection (or lack thereof), leading some to conclude that “estate administration is the new family law,” with children fighting over their parents and their parents’ money.
How to protect ourselves against this phenomenon?
If you are the parent, be sure to document your intentions clearly. Be sure more than one person knows where to find your important documents and, if feasible, provide more than one person with copies of those documents.
Be careful with joint ownership of assets. It might not be clearly explained to you that making someone a joint owner of your bank account gives them the money, right then and there, and that the money is theirs and only theirs after you die. Your child would certainly never take your money while you are alive (those stories are always about somebody else’s children), but your child’s creditors will take your money in a heartbeat. And while your child would never cheat his or her siblings, your child is human, and sometimes the lure of a lot of “free money” is more than humans – even otherwise good humans – can resist.
It seems obvious, but beware of the suddenly-attentive child who never made time for you in the past. Maybe he really has had a change of heart, or is trying to make up for past regrets before it’s too late, but maybe he just sees you as a target, or is trying to position himself to get back at siblings whom he perceives to have been favorites in the past.
If you are a child, be sure you know where to find your parents’ documents. Even without nefarious intentions on anyone’s part, it’s all to easy for a parent with early stages of dementia to misplace documents, or put them someplace “safe” where nobody can find them. And then nobody can find them. Mixing in manipulation only magnifies the problem.
Even someone diagnosed with dementia, or on strong pain medications, or in the hospital or in hospice care, is still presumed to be competent unless proved otherwise. Proof of incompetence generally requires certification by medical doctors, licensed social workers or psychologists. The not-unreasonable fear of being “put away” in a “home” after a hasty and dismissive evaluation causes some elderly folks to resist evaluation. Yet the resistance to an evaluation can be manipulated by unscrupulous siblings, domestic partners of your parent, or others.
The issues involved require careful thought and balanced evaluation, the patience of Job and wisdom of Solomon. Proceed with care and caution.
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
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