Legal - Considerations
Practical Considerations for Children of Elderly Parents in Failing Health
A major concern among those of us who have elderly parents is the possibility of their failing mental and/or physical health. Often it is very difficult to navigate between respecting their dignity and honoring their wish to maintain autonomy, while identifying increasing failures of their capacity to care for themselves and the need for reliance on others. Some pragmatic steps that can make the situation easier to navigate are outlined below. The best way to proceed is always to discuss these matters fully and frankly with your parent(s) and other family members. In almost all cases, your parent(s) will have to fully understand and agree to the actions you propose. If they are unable to either fully understand or freely agree, the options will be more limited. The topics covered in this article are only generally described for your information. You should not rely on this article alone to make important legal decisions.
The first thing to consider with a “failing parent” is getting Power of Attorney for the parent(s) should they be able to fully understand and agree to its ramifications. Power of attorney is a legal document that allows a person, called the Agent, to transact certain business as if they were the person who signs the document, called the Principal.
A basic Uniform Power of Attorney is available at any good document store. More specific Powers can be drafted by an attorney to best suit your family’s needs. Most parents are reluctant to “give up control of their lives.” Reviewing the checklist of subject areas in a Uniform Power of Attorney with your parent can assist both of you in understanding why it may be necessary in some or all of the areas. This discussion should make both of you more at ease with the Principal/Agent relationship. The Agent’s authorization can be immediate upon the principal’s signature or subject to a triggering event such as a doctor’s determination that the principal is incapacitated. This authorization is "durable", i.e., good even if the Principal (parent) should subsequently become incompetent. If there is a question of the Agent needing to spend down assets to qualify the parent for government benefits, the Principal should give the agent special powers to make gifts of the Principals’ assets to a specified class of individuals, generally the Principal’s children (or other family members), including the Agent. All this must be spelled out on the document in order to avoid claims that the Agent abused his or her position of trust.
The Power of Attorney must be signed by the Principal and notarized. If there is a question of the Agent needing to sell real estate belonging to the Principal, the Power of Attorney must be recorded.
If either parent is not competent – not able to understand what he/she is doing by signing a Power of Attorney- then a conservator needs to be appointed for that parent.
Another type of Power of Attorney is the Advance Health Care Directive. The form is a comprehensive document that allows the Principal to name someone to speak for him/her regarding health care decisions, including whether to be put on life support. Your parent can make very specific decisions in writing in advance which must be honored by the Agent. Again, a full family discussion is often useful. If the parent is already in a skilled nursing facility or hospital, an Ombudsman must witness the signature.
These two documents can help you insure that your parents will be cared for financially and medically as they wish. Rather than leaving them at your mercy, if properly prepared and executed, these documents demonstrate to your parents that they are still in control of their future as key players in the planning process.
Perhaps the most frightening issue looming ahead is that of long-term care. First, you should keep in mind that statistically, very few people spend very much time in nursing homes. There are many options available for keeping your parent(s) well-cared for at home. There are day programs to care for people with dementia, and there are skilled persons who work in the home to assist elders with their basic needs. Availability of these options will depend on the financial resources available.
I would not advise drastic re-shuffling of assets to plan for the possibility of long-term care. If your parent’s physical or mental condition is such that long-term care is a necessity, you should utilize the many resources available to educate yourself regarding skilled nursing facilities, and speak with a knowledgeable attorney regarding how best to structure your parent(s)’s assets. In many cases, your parent’s only assets may be the house, the car, and a little money in the bank. That parent should be able to qualify for Medi-Cal assistance. Make sure you fully understand the Medi-Cal rules regarding eligibility and recovery of costs upon the death of the recipient.
Choosing a nursing home can be a daunting task. As nursing homes or skilled nursing facilities, unlike other residential care facilities, are required to meet specific government standards, this information is available to the consumer. The National Senior Citizens Law Center puts out “Nursing Home Companion: A User-Friendly Guide to California's Nursing Home Laws and Practices.” This is available through the internet at www.nsclc.org or you can contact them by mail or telephone at their Los Angeles office, 3435 Wilshire Blvd., Suite 2860 Los Angeles, CA 90010-1938 (213) 639-0930. Nursing Home Compare provides free information on Medi-Care and Medi-Cal Certified homes. This service is available in English and Spanish, by telephone (1-800-MEDICARE or 1-800-633-4227) or internet (www.medicare.gov) access. Other good information and assistance is available through California Advocates for Nursing Home Reform at 1-800-474-1116 or 415-474-5171. They are located at 1610 Bush Street, San Francisco, CA 94109.
Locally, you can choose an attorney and/or investment counselor that you can trust. Additionally, the local Area Agency on Aging provides information to seniors on a variety of subjects at 1-800-510-2020.