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In the aging space, giving folks advice and strategies for over 15 years now, I thought I'd heard it all and had an understanding of what a lot of elders need. From my 10 years of nursing experience, much of it with elders, I observed a lot of problems, particularly the effect of failure to plan. From 27 years of legal practice, including litigation and trial work, I understand a bit about how the law works. I also see the consequences of failure to plan for legal matters. With both of those in my awareness, I still am sometimes shocked by what potential clients tell me.
The Shock-Two Elders With Zero Planning
Take the man we'll call "Billy", not his real name. He has been married for 50 years. His wife, "June", has developed dementia. She was recently placed in a memory care facility. He contacted us at AgingParents.com on referral from a realtor in our county because he needs to sell their home and can't do so without his wife's participation. He needs some guidance, he says. OK, I start asking questions. He definitely needs our professional advice, based on what he said. Here is some of what I learned:
1. Billy and June never did any estate planning at all. Zero. Neither he nor June had ever seen an attorney to do a will, a trust, a Durable Power of Attorney or a healthcare directive (also called a "power of attorney for health") He has nothing which would enable him to act on June's behalf, now that he wants to sell their home, which she co-owns. I asked if he had any particular reason for avoiding this. He said "We thought we'd live forever, and be fine". What??
2. I asked about doctors, and if he was in communication with June's physicians. He said "no". He said he had never spoken with a doctor about getting his wife into memory care. A doctor has to fill out a form to put the patient into memory care, verifying the patient's appropriateness for the placement. I asked who that was. Billy had no idea what doctor would have filled out the form, and he had no communication with any doctor about his wife since she developed memory problems.
Billy wanted to know what to do so he could sell their home, as the money from that will be needed to pay for memory care. He said June "couldn't sign anything." I mentioned that a diagnosis of dementia doesn't automatically mean that the person can't understand enough to sign a legal document, but the person needs to be tested to determine how far along in the process of dementia they are. This testing is done by a licensed psychologist. He will need to see to it that she is tested before it becomes clear whether she understands enough to sign a Durable Power of Attorney (DPOA) or not. He remarked that she seems "pretty normal" about half of the time. Her capacity is not clear from that description.
This man and his wife are now experiencing the expensive consequences of a complete failure to plan for anything that might happen in their futures. Billy has to get advice about what to do first. We at AgingParents.com can offer that. He will likely need to pay for my partner here, Dr. Mikol Davis, an experienced psychologist, or other psychologist of his choosing, to do the necessary testing of June. Depending on the outcome, it will be clearer whether she can sign a DPOA and appoint Billy as her agent. Likewise, she could appoint him to be her healthcare agent, so he can then communicate with any healthcare provider she has or needs. And he should be involved in her care, not living in continued denial that they'll both live forever and be fine. She has no one else!
Worst Case Scenario
If June's test results show severe memory loss and confusion, unclear thinking and other indicators of cognitive decline to the extent that she cannot understand the meaning of a DPOA, Billy will have no choice but to seek conservatorship over June, with him as conservator. This is called guardianship in states other than CA. Getting a conservatorship can be lengthy, difficult and expensive for Billy, if he goes that route. And he may have no other options if June's test results indicate the need.
How This Legal Mess Could Have Been Avoided
First, no one should cling to the fantasy that we are going to live forever and be fine. Death is a certainty. Total failure to do any estate planning can have serious consequences. Billy can't sell the home until his wife can sign necessary paperwork the realtor needs. Can she do that? He doesn't know. If he and June had done even the most basic estate planning or gotten the DPOA and healthcare directive forms free from the internet, he would already have the authority as June's agent on her DPOA. He probably would have been able to get the house sold just using that document, which June would have signed and notarized long before she needed memory care.
Next, there could have been a plan for how to pay for future care if needed by either of them. Abruptly being forced to sell their home is less than ideal. If conservatorship turned out to be needed, the process could take months and require substantial cash to pay a conservatorship attorney. Billy could run out of money to pay for memory care while that process unfolded.
Finally, Billy has no healthcare directive and legally, has no authority to talk to any doctors June may have or need. He cannot readily access any medical records without legal authority. He may be given some slack by the physician(s) as there is no one else with legal authority to communicate with them, but this is an unclear way to ensure that June always receives the care she needs.
The Takeaways
If this scenario sounds like anyone you know, please urge them to take responsibility for, at the very least, getting a DPOA and Advance Health Care Directive signed by both people or any single person who has done zero planning. Both documents are available free on the internet. Neglect, abuse, and financial exploitation can happen when no one is in charge of an elder in declining health. We at AgingParents.com want to see every aging person lives out the last part of their lives with safety and dignity. Contact us if you need direction about this, please.
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