What legal documents does mom need in place?

A client recently contacted me after her 94-year-old mother took a fall, which landed her in the Emergency Room. Fortunately, the mother remained alert and was able to clearly communicate to the attending physician what had happened, where it hurt and what she wanted done. However, this was a wakeup call for her daughter, with whom the mother lived. “My mom doesn’t have a Power of Attorney or will in place,” she told me. “What if she takes another fall and can’t communicate her wishes?”

This happens. If there is not designated Power of Attorney and the next of kin cannot be reached, by default, the hospital must treat the situation with a Full Code (unless it’s assessed as futile, which is rare). In other words, they assume the patient wants everything done possible to prolong their life.

According to a recent AARP survey, 83% of Americans over 72 have a financial and healthcare Power of Attorney in place, whereas only four in ten have a will or living trust.

What are these documents and why are they important?

The most important document, the health care proxy or power of attorney for health care, allows a person to appoint someone else to make medical decisions for them in the event that they cannot make the decision themselves. This person needs to be able to talk to doctors, consider the options, represent the person’s wishes (not their own) and make tough decisions under emotional duress.

A common and incredibly challenging situation, if a Power of Attorney for health care is not in place, is when adult children do not agree on how to act in mom’s best interest. There may be children who live at a distance and have not been as involved in mom’s care who are more likely to insist on “whatever means necessary” to keep mom alive, even if the most involved adult child claims this is against mom’s wishes. If no one is appointed Power of Attorney, then mom’s wishes may not be honored.

The second most important document is the durable power of attorney, which authorizes another person to take care of someone’s business affairs, such as writing checks, transferring funds, signing contracts, buying or selling property, in the event that they are not able to carry these out themselves.

If there is no POA and a parent becomes unable to handle their affairs—and many people do at some point—then your family could need to petition the court to have your loved one found incompetent and someone named as her legal guardian. This is a stressful and often humiliating process that can cost thousands of dollars, add tremendous strain when adult children are least likely to have the bandwidth to deal with it while also caring for mom, and then can cause legal challenges and expense for years.

What is the best way to go about getting these two crucial documents in place? My client was especially concerned that her mom would be resistant, which is not uncommon.

“Sometimes you have to start with understanding why she is resistant and respect her choices for as long as she is able to make them,” said Eldercare Attorney Dee Wallis. “It is likely that Mom feels that everyone is trying to take away her independence and does not believe this is justified. Telling her she doesn’t understand the implications of not having documents is likely to create more resistance. Step back; take a deep breath; ask mom what she wants and how she feels. Assure her that you want to help her achieve her wishes, and assure that she is safe and happy. Remember she is your mother and used to being in charge of her own life – and yours too for that matter! Once you have taken the situation from a confrontation of making demands and made it an offer of help, you are more likely to get her to a lawyer’s office.  You should look for a lawyer who is a good listener.  The documents are fairly easy, the transaction is not.  Get her to a safe place and let the lawyer do the rest.”

A will explains how a person’s finances, property and other belongings will be divided after the person dies. An executor is named who will pay taxes, bills, and other debts out of the estate and be sure that money and other assets are distributed per the will’s instructions.

Dee said not everyone needs a will. “If you do your homework carefully in advance, you may be able to handle transfer of all assets by signature cards at the bank, deeds, account arrangements with brokers, and selling that pesky car. This is another place where a listening attorney can help mom know the best course of action to achieve her wishes without feeling railroaded, and without the risk of uninformed decisions that will cost extra later.”

Dee also added that the only person in the room with the mother while these documents are being discussed and planned should be the mother. “We have to be careful about conflicts of interest, so including an interested party in the consultation may result later in a dispute in which someone claims that the person who sat in unfairly influenced the parent’s decisions.”

While there are generic forms online and in office supply stores for a will and power of attorney, it is worth the money to have a lawyer draft these documents. It is the plan, the education, and the strategy that is really crucial. There is frequently a smarter way to do things than the way you thought your mother should do it. If you draft documents yourself, you risk that loose language or a missing detail or date, will invalidate the entire document. Lack of clarity can lead to family arguments and even lawsuits, which no one wants.

The cost to draft these three documents whatever it may be, will always be less than the legal fees to fix it all later.