Your Aging Parents, Their Money, andThe Law
By Cheryl Theriault
If a parent becomes cognitively impaired, you are likely to face a host of new legal issues. Typical concerns include:
- Who will manage the confused person’s money;
- Who will make important health care decisions; and
- How to plan for long-term care.
A skilled financial planner or attorney can help you plan for the financial aspects of your parent’s long-term care needs. At a minimum, the professional you choose should have experience in estate and financial planning, probate and wills. In addition, your advisor should be familiar with Medicaid, Social Security, special needs trusts, tax planning, and housing and health care contracts.
Some ways to locate an attorney or skilled financial advisor include:
Surrogate decision-making for a person with memory loss can be difficult and emotionally-charged. The process can be simplified significantly, however, if your parent has completed a durable power of attorney (POA) and a health care power of attorney (HCPOA). These two very different documents enable your parent to designate another person to manage his/her finances and health care decisions.
To complete a POA or HCPOA, the person must be mentally competent at the time the documents are signed. The legal authority to make surrogate decisions will begin only when and if the person becomes incompetent or relegates authority to the attorney-in-fact. It is a good idea to have POA and HCPOA forms reviewed by an experienced attorney to ensure that the person’s wishes are clearly expressed and the information is complete.
When creating these documents, you should have very detailed discussions with your loved ones about their wishes regarding their thoughts on various health care decisions. When the time comes to have to make hard decisions, you will have the peace of mind that you are following their wishes.
In the case where your parent is already suffering from dementia and does not have the capacity to make decisions, you may need to obtain a guardianship which provides the legal authority to manage a person’s:
- personal affairs
- medical care
In order to obtain a guardianship, a friend, family member or public official must petition the court with facts about why the individual can no longer manage financial or personal affairs. At a hearing, the judge determines what special powers may be granted to the guardian.
Guardianships tend to be complex; the legal agreements are court supervised and the impaired person’s assets and income become part of the public record. In addition, prospective guardians may face substantial costs for court, legal, investigator and attorney fees.