Conflict Over Control With Aging Parents: The Danger Of Delay

As the only capable adult child with two difficult aging parents, Liana’s situation is not unique. The burden of trying to keep them safe falls squarely on her alone. And she has avoided for too long the unpleasant subjects she needs to discuss with them. They are in denial. They resist. They get angry when Liana tries to broach the subject of getting care.

Now Liana has to work on untangling the mess both of her parents have created. Dad has dementia and can’t make good decisions any longer. He defers to Liana’s Mom who also has cognitive decline as well as a neurological disease. Due to a combination of impairments, her parents need a helper to ensure that they have regular meals, and that they can maintain some basics like housekeeping and paying bills on time. But they won’t hire a helper.

Liana sought advice at AgingParent.com, where we consult with families of aging loved ones. What we asked immediately was whether anyone other than the two impaired elders had legal authority over money (Durable Power of Attorney- DPOA) or healthcare decisions (health care directive or proxy). Was there an estate plan? No, Liana said. Her parents own a home and have assets. They had started to do an estate plan with a lawyer but never signed the paperwork for whatever excuses they could come up with. Now, they are still in total control over their finances, even while impaired for making safe decisions.

The Legal Challenge

As Liana’s dad defers to his wife, mom is the bigger problem for Liana. She attempted to get her mom to allow her to start paying their bills. Mom exploded, angrily saying “there’s nothing wrong with us!” She does not or cannot see the depth of her own impaired thinking. It is not yet clear whether she still has the ability to create a will, trust and assign Liana (or someone else) to be the agent, with power of attorney for finances. If Liana assumes that her parents still have the legal capacity to do their estate planning, she can only encourage them to finish it. She can’t force them to take this step. Meanwhile, no one is overseeing risky financial management and decisions. But her parents can keep refusing any oversight until perhaps a serious crisis, like financial abuse or a health emergency occurs. That is the risk. Liana waited until things had reached this danger level to get involved. She admits regretting this.

Choices

When an aging parent is cognitively impaired, there is a limited window of time before the person loses the legal capacity to work with a lawyer and do an estate plan. In any good estate plan that includes a trust, there is always a provision that allows for a successor trustee to take over responsibility for the impaired trustee(s). A trust spells out what that takes. Without that, Liana is stuck. The further her parents get into their impairments, the worse her chances of persuading them to willingly give up control. Cognitive impairment can lead to loss of the capacity to reason. Logic does not work when an elder can no longer reason.

Self-Determination

We have strong legal policies to allow anyone the right of self-determination until it is proven that they are a danger to themselves or others. There is no law against making stupid decisions. At this moment, Liana has no choice about how to best protect her parents from harm and neglect, as things have not yet gotten so severe that guardianship would be a feasible option. If their situation got worse and worse and they were a provable danger to themselves, Liana could hire a lawyer and ask the court to give her guardianship over them. That is an expensive and burdensome last resort.

Bargaining With Aging Parents

Liana can work on becoming more involved in the day to day management of her parents’ lives. She can offer to hire a home care worker to do shopping, cooking and cleaning. She can acknowledge to her parents that it is difficult to give up control and offer every time she sees her parents to let her help at a deeper level. Sometimes repeated requests and persuasion can be very effective. Liana’s mom tells Liana that she doesn’t want to be a burden. Liana can use that as a bargaining tool. She can tell her mom that not allowing her to assist with finances and care is indeed a burden of worry. She can ask mom can relieve it by giving Liana legal written permission to help in the form of a DPOA.

The Effect Of Ignoring Aging Parents’ Decline

Cognitive impairment does not come on overnight. Rather, the early warning signs, like loss of short term memory, can present for years before a person actually loses the ability to properly care for one’s money and physical self. A far wiser path Liana could have chosen much earlier was to work with her parents on looking ahead in their lives and planning for potential need for help.

She was understandably uncomfortable approaching her stubborn parents with this. But now, she pays the price of waiting. Now, she sees danger looming every day. Both parents are too impaired to be safe behind the wheel but both are still driving! Mom can’t keep track of food and they eat sporadically. Their hygiene is slipping. They are neglecting their home. Bills are not getting paid on time and they seem unaware of the consequences. Liana is hoping that the lawyer who drafted the unsigned estate planning documents will respond to her calls, begging the attorney to follow up with her clients and get the papers signed.

The Takeaways

1. At the first sign of memory loss in aging parents, get involved while they still can respond to reason. Find out about their estate plan and who would be in charge legally, should the parent’s cognitive abilities continue to deteriorate.
2. Know aging parents’ financial situation and how they would pay for care at home or elsewhere, should the need arise.
3. No matter how difficult your aging parents may be, do not avoid addressing these questions of their future. If you delay as Liana did, your job will become much more difficult and stressful over time.
4. You don’t have to be an expert on what things your aging parents might need as they age. You do have to be willing to learn and observe, have difficult conversations and take action. Here’s a basic resource you can use to get started: The Family Guide to Aging Parents: Answers to Your Legal, Healthcare and Financial Questions.