Addressing incapacity and end-of-life issues with those facing them
Pro Bono Publico
The short-term thinking mind — the one we use to live day-to-day — is convinced of the permanency of itself. There is an illusion that we will always be capable of providing for the necessities of life and managing our affairs and an instinctual denial that we may become disabled or die. I think this is the reason why it’s difficult to maintain a healthy diet, save for retirement, and to plan for disability and death.
Add to that the life lived by an elderly person in this day and age. They have lived through the great depression, World War II, the sexual revolution, and the information age. These are people who have lived through more than someone in my generation could comprehend. Yet, the children of the so-called “Greatest Generation” are in the position of having to deal with the dwindling capacities and deaths of their parents.
Some forward-thinking parents have dealt with these issues, not only by preparing an estate plan, but by preparing a network of friends and relatives equipped with the knowledge and legal authority necessary to help in the context of incapacity and death. Many, perhaps even most, have not, causing children or other relatives to address these issues proactively.
When children attempt to discuss and address incapacity and end of life issues with parents who may not have adequately planned for them, a range of responses can occur, ranging from gratitude and cooperation to suspicion and resistance.
Resistance may have several causes. It may arise from a denial that the parent is now, or may soon be, incapable of handling his or her affairs. When an elderly person gives up the reins to his or her life, in whole or in part, it is the equivalent of acknowledging that a life of independence, careers and challenges met is transitioning into a relatively dependent and vulnerable phase. This is a challenging reality that some, understandably, have difficulty facing.
Resistance may arise because the parent perceives the efforts of the children to be impolite. Anyone with a Facebook account will acknowledge that younger generations are comfortable in sharing, perhaps oversharing, information about themselves and discussing their life. For older generations, and for certain cultures, personal, sensitive matters are private, and discussing them may be perceived as bad manners.
Finally, resistance may arise from distrust of the children, which, in some instances, may not be entirely meritless.
If you have determined that it’s time to discuss and address incapacity and end-of-life issues with a parent, a few things might be helpful in addressing or disarming unmerited resistances.
First, check your intentions, which should be entirely wholesome. The well-being of the parent or relative should be the primary concern. Your parents raised you, and if your intensions are less-than-wholesome, they will know what you’re up to. If you have less-than-wholesome intentions, resist the bad ones or encourage someone else better suited to the job to address the issue.
Attempt to achieve consensus with siblings or other relatives, both with regards to the necessity of addressing the issue and with regards to who should handle which responsibilities. Transparency, honesty, and a willingness to address all of the material issues are usually beneficial.
Enlist the aid of a parent’s friends or other relatives in the discussion. Children and parents have a natural conflict of interest when it comes to end-of-life and estate planning because, in most cases, the children stand to inherit the estate. Parents are aware of this conflict, so it is not necessarily unreasonable for them to be suspicious when children raise the issue. Objective, disinterested voices that the parent trusts may help reduce resistance and suspicion when it isn’t merited. Sometimes, using the services of a disinterested professional to handle the parents’ finances, such as a trust bank or other professional fiduciary, may be necessary.
Never prepare estate planning documents and foist them on an unsuspecting parent to sign (and for parents reading this article, be extremely careful with regards to legal documents that others ask you to sign). These documents should only be prepared by competent counsel who has established a formal relationship with the parent and signed by a parent who understand them. Although it is not uncommon for a child to quarterback a parent’s meetings with attorneys, financial advisors, and other professionals, these advisors’ fiduciary duties are and should be to the parent, who should in all instances have the ultimate say in the planning process, free of the undue influence of a child.
Finally, incapacity and end-of-life issues are best addressed when an individual is capable, ideally long before the plans established during the estate planning process are needed. Powers of attorney, wills and other estate-planning documents are only effective if the maker of these documents has testamentary capacity. If there is some question as to the capacity of the individual, the documents may not be enforceable, so bringing these issues up earlier in the life of the parents can be helpful.
Matthew Laurel Trinidad is an attorney with the law firm of Karp Neu Hanlon, P.C. He can be reached at firstname.lastname@example.org or 970-945-2261. He would like to thank Amanda for the idea for this column.
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