Any estate planning lawyer who drafts wills, trusts, powers of attorney and healthcare directives would tell you something frustrating: some clients won’t sign anything the lawyer prepared. This issue is not limited to adult children of aging parents. It affects solo agers and married couples as well.
In a recent conversation at AgingParents.com with an elderly wife (EW), she told me about this herself. She contacted us because she and her husband are both over 70 and she was worried. He was diagnosed with Alzheimer’s disease several years ago. They have no kids. She saw a lawyer who drew up all the paperwork she needed. But she decided not to sign any of the papers. Her reasons were vague: I didn’t know if the lawyer missed anything. Maybe I didn’t give him all the information. I wanted to check this out with someone else. Her alternative was to get a Durable Power of Attorney (DPOA) off the internet and get her husband to sign it in front of a notary at a local mall outlet. She did not name anyone in the event that she, herself, became impaired. That’s all she has to act on her husband’s behalf. It occurred to her that if she fell ill or passed, she had not set up anything to keep her husband cared for and safe. There was no one designated to act legally in her place. That could be a huge mess!
Fear and inaction
Perhaps EW is worried because she can’t quite face her own mortality. She also may be in denial that her husband’s Alzheimer’s disease does grow steadily worse over time and we have no medication that can stop this decline. She sounds fearful. She says “I’m stuck” and finally decided to get some advice. In truth, she’s not stuck, but stubborn. She did not follow the legal advice she presumably received from her lawyer prior to this.
What to do?
EW needs a strategy. As she has no family and no children to assist her, she will need to identify a trustworthy friend to act on her behalf, or her husband’s, if needed. If she passes before her husband does, someone must fill the gap of being in charge as she is now. That person can be appointed to serve as her own agent, or her husband’s agent to handle financial matters, should both of them become incapacitated.
Friend or fiduciary
If there is no capable and willing friend for this potentially difficult job, she can appoint a licensed fiduciary to do it. In addition to having an appointed person for managing finances while they are both living, she also needs to appoint someone to address medical issues if either of them can’t speak for themselves. That is done with a healthcare directive, also sometimes called a healthcare power of attorney. A noteworthy consideration about who is right for that job is to think of who can be an advocate for one’s wishes at end of life. Standing up to doctors and other healthcare providers to advocate for your wishes can be challenging.
Filling in the blanks
The advice we offer her at AgingParents.com is to go ahead sign what her lawyer previously prepared for her unless it is out of date or inaccurate for current circumstances. We review these documents to be sure everything she may need is addressed. The lawyer she hired before can always amend or re-draft anything additional. I help her choose the right friend or fiduciary to serve as her and her husband’s agent on that already written healthcare directive. She can add that name and contact information and sign that document. She can add that name to the Power of Attorney document too. Then they are both protected.
Obstacles with their Trust
One of the couple’s investment accounts required a decision from the account holder, who was her impaired husband. They called him and asked questions. He could not answer them. The institution then froze the account. Neither she nor her husband could access it because it was part of their trust. The trust required that the husband’s incapacity for financial decisions had to be verified with a doctor’s letter. EW hadn’t gotten that, but fortunately, she could easily do so. I urged her to get moving and get that done right away. Once she got the doctor’s letter, and sent it to the institution, she would then be in charge, able to access the account, because she was the successor to her husband with authority on that account. If EW became also impaired, the newly appointed person she named would be authorized to make account decisions.
The Takeaways here:
- If you or your aging loved ones have seen an estate planning lawyer and gotten their estate documents properly prepared, do sign them. Stubborn refusal can create a huge mess, and can cause the estate to lose money unnecessarily to attorneys’ fees and taxes.
- You are not “stuck” as EW said she was. No one was forcing her to refrain from getting the proper documents in place. She was being stubborn about not moving ahead and not signing anything.
- Fear of facing one’s own mortality can be overcome. If you don’t know whom to appoint on your documents as a backup for yourself, get some advice and pick someone or appoint a fiduciary. Save yourself, your estate and any loved ones affected by doing the right thing.
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