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An Elder Law Attorney Perspective on Aging Parents:

3 Approaches to the Tough Conversation and the Necessary Documents

Sometimes joyful occasions visiting family can illuminate health or cognitive issues in our older loved ones.

Mom and Dad may have aged more than expected, or suddenly seem to need more assistance with daily tasks. Or maybe your elderly loved ones are doing fine, but you recognize that they are getting older, and the reality is that you need to discuss important topics and decisions for their retirement, their advanced years and end-of-life wishes.

These tough conversations can be uncomfortable, but they are necessary. A Place for Mom expert and elder law attorney, Stuart Furman, Esq., shares his opinion on how families can position themselves to help their aging loved ones prepare for the future.

“You need to shift perspective and think of these talks as a gift, both from the parent to the children as well as from the child to the parent. There has to be a trust relationship where the parent understands that you will not be taking control, but rather you are going to be carrying out the aging parent [or loved one’s] objectives. Help them understand why these conversations are crucial to help them prepare for the future.”

Assuring That Senior Loved Ones are Prepared

It’s no secret that the need to care for an aging family member tends to sneak up on everyone involved. Both adult children and their parents tend to avoid thinking about getting sick or old.

Furman, an estate planning eldercare attorney, got thrown into becoming a caregiver and the eldercare journey himself when his own parents began to need help. He realized how important it was to collect information and to have it available to make important life decisions. Through his own personal experience as well as professional experience helping other families, Furman has observed that it is more difficult to cope with the uncertainty, stress, and confusion of eldercare due to a lack of clear understanding and preparation.

“There used to be only two absolute truths. Death and taxes. But there is a third, and that’s eldercare. The only questions are: how long is it going to last, and how intense is it going to be? You need to be prepared while Mom and Dad are still competent. By anticipating what will be needed for your eldercare journey, you can make the trip much less stressful for everyone involved."

Furman outlines three approaches to delicately handle the ‘tough conversation’ of senior care with your aging loved ones.

1. Allow Them to Have Control

This is difficult on many levels, notes Furman. Most parents still feel they should be the ones in control. After all, they are the parent. However, as the parent’s mental competency wanes, the access to their information and desires is also lost. If you let them be in control while still allowing you to do what needs to be done, that will help ease their distress. Begin the conversation and preparation where they can control what their desires and wishes are for the future, so that you can work together with them to put the right plans in place. Let them know that their wishes are the only things that are important. You are there to assist them. You are “Partners-in-Care.”

2. Make Sure To Create a New Trust Relationship

There has to be a new trust relationship if you’re going to be carrying out your loved one’s objectives. The role reversal that most people have heard about is real. The parent now has become the cared-for person. But stating it that way tends to upset the parent and create many roadblocks. Look at this in a different way. You are not becoming the authority figure, but rather you are merely becoming the agent for the parents. “Just like with a power-of-attorney, look at it not as control, but that you are the troops helping deliver your parents’ wishes. This helps to soften the conversation,” notes Furman.

3. Gather the Information Easily

Making guesses about your parents’ wishes and their vital information during a crisis most often results in a bad situation, and potentially bad decisions, for everyone involved. Gathering the information ahead of time is the best way to prevent this problem. Furman says, "I can’t emphasize more how much information needs to be readily at hand and packed in your eldercare suitcase.”

Remember also that just because you are not yet a senior citizen does not make you exempt from dying or becoming mentally incapacitated earlier than expected. So this early preparation and packing your suitcase is for everyone.

Necessary Documents for Eldercare Readiness

Our life is bookended by essential documents, many of which are necessary for family members to successfully carry out end of life care and wishes. But which documents are the most important? Here is a quick rundown of the ones you will need and that should be discussed with your aging loved one.

Financial Information You Need

Financial information can be crucial in many instances for timely, efficient and more affordable care. Here is a list of some vital financial information:

  • List of all bank accounts
  • Pension documents, 401(k) information, and annuity contracts
  • Tax returns
  • Savings bonds, stock certificates or brokerage accounts
  • Partnership and corporate operating agreements
  • Deeds to all properties
  • Vehicle title
  • Documentation of loans and debts, including all credit accounts
  • Trust documents and durable financial power-of-attorney (financial proxy)

Also critical is access to the information. Just because you may know what the parents own, does not mean you can get access to information regarding the assets, or be able to transact on behalf of the parent. This is where having proper releases (or a power of attorney or trust) on file with the asset holders and having them accepted as being sufficient for the particular purpose is necessary.

Healthcare Documents You Need

If a senior becomes incapacitated or can’t communicate, it’s important that the senior’s wishes be stated in a living will or health care advance directive, and also that someone with the authority to represent the senior has been designated. Furman advises,

“Since you never know what healthcare problems will arise or when you’ll have to visit a hospital, being able to quickly grab official paperwork such as a healthcare power-of-attorney or an advanced healthcare directive can eliminate a lot of stress at the hospital. Doctors want proof that you are the decision-maker, and all of the decisions should already be made.”

Important healthcare documents include:

  • Healthcare proxy (durable health power-of-attorney)
  • Authorization to release healthcare information
  • Living will (healthcare directive)
  • Personal medical history
  • Insurance card (Medicare, Medicaid, Independent)
  • Long-term care insurance policy
  • Lists of current medication and health conditions

When it comes to healthcare decisions, remember that the agent is the proxy for the parent in carrying out these decisions in the same manner that they would have had they been able to. Parents or family members need to provide a lot of detail. A broad statement is not enough. "Many of my clients say they 'don’t want to be hooked up on tubes,' or they 'don’t want life support,' which really does not give much guidance when a specific healthcare decision needs to be made.

"If specific wishes are not clearly communicated, the family and kids have to step up and decide what to do based on their own idea, or best guess, of what Mom or Dad may have wanted in a specific healthcare situation. This fuels the flames of family battles as these decisions, albeit in good faith, are made subject to each child’s biases and life experiences. It is up to the parents to clearly state what they want, so that everyone can just focus on delivering those wishes."

End-of-Life and Estate Planning Documents You Need

It’s emotionally challenging when a loved one dies. Family members don’t need to also feel overwhelmed trying to sort out end-of-life affairs. “We can save ourselves and our loved ones the burden of disorganization at this crucial time by making sure that documents related to estate planning and end-of-life have been drawn up, are up-to-date, and easily available,” Furman reminds us. Essential end-of-life documents include the following:

  • Will and trust
  • Life-insurance policies
  • End of life instructions letter (regarding wishes not covered in will, for example regarding memorial, or items not covered in the will)
  • Organ donor card or information

Appropriate estate planning documentation is also necessary if you’re in any situation where the ability to do estate planning is at risk. Get more detailed estate planning preparation information in Furman’s “Why Estate Planning Procrastination Kills Your Options” article.

Beginning the Eldercare Journey

When you are ready to begin the eldercare journey, Furman recommends that you evaluate your family’s legal capacity, or consult with an elder law attorney first, to ensure that there are not any misconceptions about your loved one’s care.

"Many prospective clients see me when something has happened to one of them, or something has progressed and they need to have control of assets,” he says. “The wife may have Alzheimer’s or dementia and the husband waited until he must act due to an external event forcing them to see me (such as a financial institution refusing to let the husband have information about an account in the wife’s name, for instance). At that point, the individual may have already lost capacity to execute documents which creates a much more challenging estate planning project.

"I have also had countless families tell me that they have had Mom or Dad declared incompetent so that they can sign the power of attorney or trust and another person can then take over. Although their intentions were in the right place, you must have mental capacity to sign, not lack mental capacity. So families are often mixed up on this issue.”

Taking Action

This type of planning must also take place well in advance to protect assets, Furman says. “One must be very proactive, not reactive. If families are reacting to events that occur without the planning in place, it is often too late, or it becomes much more challenging and consequently much more expensive.”

Furman concludes, "So, if you are headed home to visit, plan ahead. Even if your senior loved ones are in good health, start the conversation about end-of-life wishes early. It’s better to be prepared and to let your parents know you are their advocate, or their 'troops.'"

About Stuart Furman, Esq.

Stuart Furman, Esq., is an elder law attorney of 34 years. He is President of the Southern California Legal Center, Inc. and ElderCare Ready, LLC, and author of ”The ElderCare Ready Book” (2015) and ”The ElderCare Ready Pack” (2015). He has been featured on AARP, Forbes, MariaShriver.com, and more. His books are available online with most online retailers. For more information and to purchase his books, check out www.StuartFurman.com. You can also reach him at 877-820-3335.

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