10 Questions with Elder Law Attorney Dennis Toman

What should you do when you’re worried about a parent or spouse who is is declining health, with either memory or mobility issues. Maybe you’ve become more worried due to some recently made bad decisions, or because he or she can’t keep up with finances. Here are some answers from our elder law and estate planning expert, Dennis Toman. Dennis is the founder of Greensboro law firm The Elderlaw Firm, and he writes and directs this site, ElderlawFirm.com, to provide insightful articles, online tools and helpful resources for North Carolina seniors and their families. When you’re concerned about how to help a loved one plan ahead or to get needed care, here are 10 typical questions answered by Certified Elder Law Attorney Dennis Toman.

1. When is the best time to plan to help my parent or spouse?

Now is the best time to plan or to review existing plans. Do it while your loved one is healthy and competent. Even if there hasn’t been any planning, it’s only too late to plan when there is nothing left to protect. But plan before dementia or Alzheimer’s take their toll. If you wait, you’ll lose valuable years of planning time, and the disease could progress to the point where your loved one can no longer sign important documents. Don’t wait.

2. How should I begin this conversation?

My best advice is, don’t over-think this. Chances are, your parent or spouse has these worries too, and they are reluctant to start the conversation themselves. I suggest that you start by being ready for the right time. The topic of health care or finances, or a problem that a friend or relative is having may provide a good way of talking about future planning. Often children and parents come to our educational seminars, for an easy way to get good information in a relaxed atmosphere.

If this needs some prompting, you can tie this into others who have done some planning, or even thought about it. You might say to your parent, “You know Mom, Jim and I just did our trust planning and we feel a lot better. It went pretty well and we felt good about the lawyer that helped us. I was wondering…have you you gotten your planning done already?” Or you could mention to your spouse,  “I was going through our papers and found our old Wills. Did you know it’s been over 30 years since we updated those? I’ve been reading that we should get these updated, and that it’s really important to sign powers of attorney, so we can take care of each other. What do you think?”

Or you might use a recent news article, or an experience of a friend or neighbor or church member. You could say something like, “John is having a lot of trouble because his dad had a stroke and had to go into a nursing home. I’m worried what would happen if anything happens to you. What would you say about meeting with an elder law attorney to make sure that you’re taken care better?”

3. How can I do this without putting my parent on the defensive?

Again, every one is different and your approach depends on your relationship with your parent, and the relationship with the other children if any. Often a family meeting with everyone present can make the parent feel like the children have “ganged up” on them and put them on a the defensive. It’s always advisable to talk first with your siblings and other key family members such as your parent’s siblings. You can talk about your concerns and guade how others feel to either have a common opinion, or at least avoid misunderstandings and hurt feelings. Sometimes a family meeting can work but often it’s easier if one or two children share their concerns on behalf of the others. By discussing this among the children first, being ready with a consistent response can be helpful for putting mom or dad at ease.

4. What do we do after it’s agreed to get started?

Generally you’ll want to talk with an experienced elder law attorney about elder law estate planning, and planning ahead. The focus should be on who can help your loved one, if they need help due to an accident or debilitating condition (such as a stroke or Alzheimer’s). In fact, planning for incapacity is often more important than planning for death. Experienced elder law attorneys know how to get the process started, and do it in a way that is respectful and not intimidating. If there are concerns about the person no longer having sufficient capacity to sign documents, it might be necessary to get a physician to give an opinion on the person’s ability to make their own decisions.

5. When would it be appropriate to consider whether a move to a care facility is needed, rather than staying at home?

Nearly everyone wants to remain at home, rather than moving to a care facility. At age 93 one of my grandmothers lived in her own home until a few weeks before she died. My other grandmother moved to independent living, and enjoyed many years there with supportive assistance. The key is going to be balancing independence and safety, along with finances and available family resources. The determining factor though is going to be whether your parent or spouse safely can live at home, either on their own or with assistance that the family can afford. If the family is not united on this, or if there is uncertainty, one idea would be to hire a geriatric care manager.

6. What documents should my loved one have in place?

Here are key documents, listed in order of importance:

In addition to this, there may be steps to take involving protecting the family home, and safeguarding a portion of the assets against potential future nursing home costs of over $75,0000 per year.

7. If my loved one already has a living trust, is that enough?

Very likely, past estate planning dealt with the traditional estate planning concern, namely “What happens if I die?” Now when there are memory or mobility issues, the better question (and what worries most seniors) instead is “What happens if I don’t die?” Your previous living trust and power of  attorney may have been perfectly fine for traditional estate planning, but likely won’t protect assets if your spouse or parent needs nursing home care in the future. You should find a lawyer who assists with elder law estate planning, and in particular long-term care planning for incapacity or future Medicaid qualification. Remember, that many of the planning steps must be done at least five years before nursing home care is needed, so don’t delay!

8. What do you recommend when our family can’t agree on how to proceed and we have fights about this?

First, regardless of what the children want or don’t want, ultimately the decision is up to Mom and Dad. You may need to take the position of simply facilitating Mom and Dad being able to get the legal help needed, to move ahead based on what they want regardless of what the children want. However, it may also help to make sure that everyone can communicate clearly and without becoming overly emotional or aggravated. Remember that emails are very easy to misconstrue and are not good for sensitive topics. A phone call nearly always can help convey feelings better than email, when you can’t meet face-to-face.

Too many families find themselves at odds after a parent dies, or even if a guardianship is needed. That often results in costly court fights, and family splits. Your parents wouldn’t want that. You may need to bring in a third party to help mediate. That .  is always better than Sometimes Make sure everyone has all the facts. Sometimes disagreements arise because of miscommunication or misunderstanding of the options that are available. For example, I came across a couple that was arguing over something for years but it wasn’t until they met with a lawyer that they realized the root of the disagreement and it went away. The greatest concern here is getting everyone to participate and if one person isn’t willing, you won’t get anywhere. Depending on the situation, bringing in a third party, whether it be a geriatric care manager, attorney or mediator, could help cool tempers and focus on what the goals are. It’s better to solve this way than ending up in court.

9. Dad says he doesn’t want anyone else to tell him what to do and he can handle things on his own. But he hasn’t been paying bills on time, and he is also spending more on his credit card than before. What can we do to help him without making feel like he’s losing his independence?

It’s important that your Dad feels understood. For nearly every older person, control is a concern and losing control doesn’t feel good. For a person who can feel health and abilities slipping away, keeping control in other areas become even more important. That may be why your Dad wants to keep control of his checkbook, and also not want any help to for care at home. It is quite typical to feel that way.

If your Dad does have the mental ability to manage his own finances, you may be able to help by simply looking over his shoulder. Perhaps you could write checks, but have him sign them. Or you might want to help him get automatic payments started for key bills such as utilities, or credit card payments. If his spending habits are changing, this could be a sign of dementia, and you should keep track of the types of purchases.

On the other hand if your Dad is no longer to handle these things but won’t admit it, you may need to work with other family members to make sure someone is monitoring the financial situation. Again, online banking can help. Be sure that there is a good power of attorney in place for finances, and assure your dad that he doesn’t lose any ability to manage his own affairs by signing a power of attorney; he simply gets someone else’s help if he needs it, and he can decide to revoke the power of attorney later if he wishes.

If there is a need for help because Dad is no longer competent, and he never signed a Power of Attorney, you may need to seen a North Carolina guardianship. This is something normally I’d prefer to avoid, but sometimes it becomes necessary.

10. I’m worried about Mom who is taking care of Dad. Her health is ok now, but she is providing more and more care, and it’s starting to wear on her. What should family caregivers know?

Being a caregiver is a difficult role. Your Mom can use support from the family, and the family needs to be alert to her physical and mental state. In addition, if one spouse has Alzheimer’s or another debilitating disease, the caregiver spouse needs to take steps to protect both of them, in case something happens to either of them. For example, what if your Mom has a stroke or dies…will Dad be able to remain at home, and will all assets wind up in his name and vulnerable to devastating long-term care costs? Also, your Mom may need to consider changing her role at some point, from being the full-time “caregiver” to being a “care advocate.” Rather than providing hands-on care around the clock as a caregiver, Mom’s role as Dad’s “care advocate” may involve his getting home care or care in a facility and she will be the one to make sure that it goes well. She’ll provide him with companionship, conversation and be his advocate for better care. Then she can go get a good night’s sleep and start over again the next day. After all what good will Mom do for Dad if the stress causes her to have a heart attack and she needs care too? Again, family support will be key, along with having good plans in place for the elder care journey.