Let’s talk about role reversals. About trading places. You’ve seen that movie Trading Places with Eddie Murphy and Dan Akroyd. That’s a good movie, right?
Well, here we’re talking about a little different kind of trading places.
More and more today, children are taking care of aging parents. Your parents raise you, and then you end up having to take care of one or both of them as they age. And how should you prepare for that? What should you do? What should the parents do?
Just in case that transition needs to happen. What should the children do to ensure they have the tools to handle mom and dad’s affairs? Your parents raise you, they feed you, they nurture you, they clothe and love you. Cook for you. Change your dirty diapers, right?
They worry to death about you, all the time. I’m sure I worried my parents to death, especially when I was a teenager. They take you to church. Work their fingers to the bone to make money to take care of you. Send you to college, some parents, even send their kids to college.
I think we pamper our kids so much now. We don’t let them be independent early enough. But they take you on vacation, just like my parents did.
You know, they just do all kinds of things for you. I was just looking – and thank you to my wife, by the way, Stephanie, for doing some research in preparation for this article for me. She was looking up and we were talking about some crazy outlandish things that parents have done for their children.
And she was looking at a couple different sources. According to Women’s Day magazine, in April 2010, mother, Nicki Carpenter, in Yazoo City, Mississippi, placed mattresses over her three sons, laid down on top of them during a tornado, and she ended up unfortunately passing herself but saved her kids to do that.
That’s the extraordinary things a mother will do for her children.
Angela Cavalo pulled her 1964 Chevy Impala off her son. We’ve all heard about that one, right? The adrenaline, she went and pulled it off her son after the jack collapsed and the car fell on him.
Mothers, parents, can just do amazing things to take care of and protect their children. Well, I think we should return the favor.
And we’ve got to know that those things are coming, that day is coming, potentially.
What I’d love to focus on here is that role reversal. Taking care of parents. How do we do it? What kind of legal documents need to be in place to make sure you can handle bank accounts, make healthcare decisions. Should a living will be in place? A will?
That’s an important decision: Powers of Attorneys and other planning documents. Should we do some deed planning to make sure property is passing the right way? Because if you wait too late, you’re in a guardianship situation. And that’s a situation that we want to avoid. Not that guardianships are terrible things, they just take longer to put in place and they are more costly to put in place.
If you wait until the point that mom or dad are incapacitated which is when you need help the most, sometimes you’re not in the condition to give consent under the law. So we want to put these important documents in place, at a low cost, ahead of time for the senior and for the children who might be taking care of those seniors.
Just to give you some Alzheimer’s and Dementia facts, that’s such a powerful thing these days and just affects so many seniors.
It’s the 6th leading cause of death in the US. One in three seniors die with Alzheimer’s or some other type of dementia, so we want to plan ahead for this. Almost two- thirds of Americans with Alzheimer’s are women. So women are especially in danger. I don’t know why that is.
It’s the only one of the top 10 causes of death in the US that cannot be prevented or slowed. It cannot be cured, prevented, or slowed. The only one. We know so little about it.
Women statistically live longer, perhaps that’s one of the reasons. Perhaps that’s one of the reasons that they’re living longer.
And women or men can live a long time with the disease. Your body can far outlive your mind in that situation.
What you’re talking about a lot of times is needing care in a secure facility, a special facility that deals with Alzheimer’s and Dementia patients and you need to plan for that. You need to prepare for the costs that are involved for providing specialized care while also protecting assets to prevent everything from being spent down.
Senior want to stay independent… Who wouldn’t? We want the senior to stay independent for as long as possible, no matter what the situation is. We want them to stay in control, of their assets and their lives.
But we want to plan for the situation, should the senior need any kind of care. And what should you have in place ahead of time to ensure that you’ve protected those things you’ve worked for your entire life and make sure you get the best care and your children, for instance, are able to go through that role reversal? You go ahead and appoint them as the power of attorney to handle bank accounts, cable bill, power bill, handle protection of the home, pay the mortgage, whatever needs to be done.
That we go ahead and have those things in place. Even a husband and a wife should have those things in place for each other, so that they can handle each other’s accounts.
Let’s say there’s a husband and wife, something happens, there’s an accident. And they’re not really that old, it could happen at any age. It could happen to me. But the other spouse, they need constant care.
In an ideal situation, the spouse who is well and healthy will be there to look after them. I know that doesn’t always happen. But if they love each other and they’re devoted to each other, they would be there to look after the injured or incapacitate spouse. And it may be that way the rest of their life.
If you have the healthcare powers of attorney in place, so that the doctors, healthcare facilities, professionals know exactly who to look at to make decisions. There’s no arguing among siblings, among kids, whoever on who’s going to make those healthcare decisions.
So there’s no confusion. You have one chief appointed among all the Indians and you’re able to make those important healthcare decisions in a very timely manner. Sometimes time means life or death when decisions are made on different healthcare issues that need to be made regarding treatment.
So you want to have important documents in place ahead of time. General durable powers of attorney so that they husband or wife can handle accounts for each other.
My wife can’t handle my cellphone bill because I set it up. And whoever the carrier might be wouldn’t talk to her and wouldn’t allow her to change things unless she had access to do it. So that’s a simple example. Banks can even have much more stringent – and rightly so – measures in place to prevent the wrong person from coming in and moving money from your accounts or handling your accounts.
Even calling a doctor’s office now, you can’t do that really.
HIPAA regulations are so strict and tight now on who they’ll give information out to or give medical records to, so that’s an important reason to go ahead and have those things in place ahead of time.
So that’s what we want to do, is help seniors at a very low cost, comparatively, to not waiting. When it really costs or when you really understand what I’m talking about and what you need, is sometimes when it’s too late.
Say a person who’s an older person, they have more than one child, and something happens to them. They have a heart attack. They have a stroke. They’re not totally incapacitated but they can’t look after themselves.
Could a Parents Actions, Documents and Decisions Be Challenged?
Yes! Children could come in and challenge whether a senior is of sound mind when they draft important legal documents. That is why planning ahead and placing important legal documents in place while one is still very sharp is very important.
Time is one of the enemies. I talk about titanic mistakes in elder law. That’s one of the enemies, is time. Waiting. Because people are motivated by fear, generally, and when they know that time crunch is on and they need to do something, it may be too late.
That’s why I do a radio show, write articles, give talks to churches, to other groups, all the time. I want to educated people so they act out of knowledge and logic; not fear and panic. It cost less to plan ahead and you’ve got these things done ahead of time, that way you don’t find yourself in a time crunch saying “oh my gosh, we need to act and do something now because husband, wife, mom, or dad is in this emergency situation!”
And what if the situation is a parent, again, older parent, becomes ill, incapacitated, can’t take care of themselves, and heaven forbid, what if the children argue, “well I don’t want to do it, you do it?” What can happen then?
So what you’re talking about is kind of like a hot potato, nobody wants that responsibility. Or sometimes you have the opposite. Multiple people want that responsibility. And then who are the healthcare providers supposed to listen to? Do we listen to this sister or this sister? Or this daughter or this daughter?
You can save your children guilt-ridden decisions and trouble by appointing, as I like to say, a chief among all the Indians. And that doesn’t mean that’s the final person. You could appoint a couple very responsible children to be “co” or work together.
Or you could, I like to say, have a deep bench. Have one person up to bat, making those decisions. Should that person be unavailable or unable to do it, or refuse to make those decisions, then you have somebody else appointed who comes off the bench, the next child in line, to make those decisions, for instance. And you can go as deep as you want to on the bench there, appointing those people.
That way those documents grow with you the rest of your life.
This is a sensitive and somber topic but some of the issues we deal with are. I deal with these and other issues on a daily basis. My staff deals with these issues on a daily basis.
And we’d love to meet with you. We’d be glad to sit down, hear your situation, and advise you honestly and accordingly.
Luckily, we have raving fans, and that’s what we want! We want to be your elder law attorney and advisor for generations. That’s what my goal is. I want you to be able to call me with any questions. I routinely give my cellphone number to clients, so they can call me anytime, day or night.
I say I’m always on, and I am! Because I care so much about my clients. And it’s how I take care of my family. And I care that much about my family and yours.
What if my Will and other Documents were drafted in another State?
Have an elder law attorney review these documents to make sure they have the fundamental elements for a will in North Carolina or your State. For instance, two people, in North Carolina, two witnesses and a notary public have to see you sign the will by line of sight. That means, can’t have looked away. Can’t be around the corner, can’t be in the next room.
They have to see you put pen to paper and sign it, along with a notary. That’s three people sitting there that need to see that will signed. If not, then it’s invalid. And it could be invalidated in a court of law, in North Carolina.
And there’s a number of situations where that might happen. It may not be challenged, but it can be. It needs to say that you’re of sound mind of body. It needs to say that you’re over 18 years old.
So many people will go to online sources or “oh we did this at the plant.” I see those all the time where we may have to rework something.
I look at wills of people that come from out of state, and some of them are okay. Some of them apply under the North Carolina statutes. And I say, look, it’s up to snuff. It’s up to you if you want to redraft it because there are some changes you want to make, but it looks like it’s going to do its job.
But “All I Want/Need is a Simple Will.”
But other things you don’t think about, and there is no such thing as a simple will. I love that saying, and it’s so true. What happens if you’re giving a large amount of money or property or something like that to a loved one and they’re on some type of governmental benefit or support. And that gift is going to totally disqualify them for that benefit or support.
What happens in that situation? Well, I’ll tell you. Our wills, we allow for a supplemental needs trust to be set up in that situation, and we go ahead and outline that in the will. It’s not a one page or two page will.
But we set it up so that doesn’t happen. So that it could drop directly into a supplemental needs trust to provide for that person’s health and well-being and not disqualify them for any governmental benefit they might be receiving.
Benefits like SSI, Medicare or Medicaid.
Any or all of the above. Whatever you might be drawing, whatever the situation might be, whatever the benefit might be, you’ll want to take a look at the rules of that benefit before you receive that gift. Or else, the only other option that person might have is renouncing that gift and not taking it, period.
Whereas it could’ve drop into a supplemental needs trust that’s automatically created by your will to make sure that it provides for that person’s health and well-being, pays money to take care of that person, while not disqualifying them from the governmental benefit that they’re receiving.
After someone passes away should I keep their paperwork?
I try to save everything. It’s a just in case measure. Save it or scan it, save it digitally. I’m a huge fan of saving things digitally so we always have an exact copy to reproduce. But save it. Put it in a file drawer, put it in a desk draw, scan it, keep it on a thumb drive. Put it on a CD. Make sure you have it, just in case.
What does the word “PROBATE” mean? Is it something simple?
I think it is simple. Let me break it down for you the way I have it broken down in my mind. I like to boil things down.
To probate something, you’d need a will. So if there is a valid will and you file it, not just record it but file it, open an estate at the courthouse for probate, that’s the probate process. If there’s a will.
If there’s no will, then that estate can be administered. But you’re still opening an estate at the courthouse, saying look there’s no will, we need to appoint an administrator. It needs to be this family member, this is why.
Then you’re under what’s called the intestate succession statutes, in North Carolina, which our lawmakers, who I know we all know they have our best interest at heart and they’ve all set up statutes to pass things to us the way we want.
However, with no will, you may not pass property under State statutes the way you might have liked. I love passing things outside of administration and probate. If I set a plan up correctly ahead of time, I hope the last thing you or your loved ones are going to have to worry about is going to be a probate process.
If I plan we are going to think about transferrable upon death assets. Your home, your land. Everything is going to be able to go straight where it’s supposed to, just like an insurance policy.
Because when you open up the probate process, what do you have to do? You have to advertise it in the paper once every week for four weeks, and then it’s got to remain open for liens to come in for 90 days.
That’s the legal notices you see in the paper. So why would you want to open up everything you’ve worked for your entire life to be taken away by some lien? When you can pass it directly, transferrable upon death, to a loved one. And there are simple and legal ways to do just that.
If a loved one has passed, when I’ve done a correct estate plan, and we’ve done transferrable upon death assets, for the most part, I’ll sit down with the family, and while it’s a sad time, I love easing their pain and making it easier for them. Because all I have to do is reassure them that yes, everything has automatically passed down through the family as your loved one intended. No, you don’t have to go to the courthouse to probate the will.
And we’ll sit and talk for 30 minutes, an hour. But in the end, if I’ve done it right, the answer is: “Everything is done.” They love the fact that they don’t have to go to the courthouse. They don’t have to probate or administer the estate. They don’t have to do anything. It’s done. We did it ahead of time.
And they don’t have anything left to do.
Ending on a Positive Note: A Letter from Mother to Daughter:
I love ending on a positive note, but I want to read this letter.
It’s a letter from a mother to a daughter. And it goes with my thoughts about role reversal or trading places. And how many people are suffering or diagnosed with Alzheimer’s and Dementia:
“My dear girl, the day you see I’m getting old, I ask you to please be patient, but most of all, try to understand what I’m going through. If when we talk, I repeat the same thing a thousand times, don’t interrupt to say: “You said the same thing a minute ago”… Just listen, please. Try to remember the times when you were little and I would read the same story night after night until you would fall asleep. When I don’t want to take a bath, don’t be mad and don’t embarrass me. Remember when I had to run after you making excuses and trying to get you to take a shower when you were just a girl? When you see how ignorant I am when it comes to new technology, give me the time to learn and don’t look at me that way… remember, honey, I patiently taught you how to do many things like eating appropriately, getting dressed, combing your hair and dealing with life’s issues every day… the day you see I’m getting old, I ask you to please be patient, but most of all, try to understand what I’m going through. If I occasionally lose track of what we’re talking about, give me the time to remember, and if I can’t, don’t be nervous, impatient or arrogant. Just know in your heart that the most important thing for me is to be with you. And when my old, tired legs don’t let me move as quickly as before, give me your hand the same way that I offered mine to you when you first walked. When those days come, don’t feel sad… just be with me, and understand me while I get to the end of my life with love. I’ll cherish and thank you for the gift of time and joy we shared. With a big smile and the huge love I’ve always had for you, I just want to say, I love you… my darling daughter.”
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McIntyre Elder Law
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