Forgive me, but I need to start this chapter with a statement that’s both brutal and true:
A disability is often harder on a family than a death.
Why? Because if you become seriously disabled, your loved ones will have to deal with many of the same legal issues as when you die, but they will also have to take care of you. A serious disability is not just difficult and draining for everyone, but shockingly expensive. A nursing home runs from $3,000 on up to $30,000 or more a month, depending on quality and level of care. In-home help can be nearly as expensive. Both Medicare and health insurance stop paying for institutional daily care after a short time limit. And most government aid programs expect you to exhaust nearly all your assets before they step in to help.
A mental incapacity triggers the most significant consequences of all.
As I write these words, my wife acts as the primary caregiver for her mother, who has Alzheimer’s disease, and can provide little or no care for herself. As Nancy Reagan put it, we are living “the long, long goodbye.” My mother in-law was once a strong woman who raised four boys and a daughter. This makes the emotional burden on my wife that much harder. Their roles have reversed. My wife has become the parent, and the parent has become the child.
Because I have pledged myself to honesty in this book, I will say this aloud: my wife’s mother has become a 102 pound two-year-old. I do not say this to be heartless. I say it to face facts. My wife would like to be with her mother for positive moments. She’d like to take her mother out for fun activities, have what conversations they still can, and enjoy each other’s company. But the cost factors demand that my wife provide daily personal care which leaves little time for positive moments.
From the standpoint of legal and family logistics, mental incapacity can prove more challenging than death. That’s because while death is a clearly defined state, incapacity is not. To quote Yogi Berra, “It ain’t over till it’s over.” From a legal perspective, incapacity creates a twilight zone of uncertainty, which often causes strife within families, drains estates, and leads to unnecessary and debilitating court battles.
In the Introduction, I noted that 80 percent of Americans will face a period of sustained disability before their deaths. Most of those Americans will not have done even the most rudimentary planning for this event. A “last will and testament” does not adequately provide for the succession of an estate; it does nothing to provide for mental incapacity, because it’s not legally effective until death.
Remember that in your decline, someone will have to take action. If your mental agility fades, you may become a threat to yourself or other people. You may become substantially unable to resist fraud, duress, menace from predators, or the undue influence of others. If you become unable to provide for your own food, clothing, hygiene, and shelter, someone else must be given the responsibility for your person. Someone else must decide where you will live and with whom you will associate.
WHAT IF I HAVE NO PLAN?
If you enter a period of mental incapacity due to a stroke, dementia, Alzheimer’s, or other causes, there may come a point when you really should not be in control of your bank account or other affairs. At this point, if your family doesn’t step in, the government will.
If someone notices that you have started writing checks for $5,000 to the pizza delivery guy, and no family member with legal authority steps in, the county in which you reside will enter your home and take over. Certain institutions, like banks, hospitals, and senior centers are on the watch for moments like this, and they are required to report their suspicions about your mental capacity to law enforcement.
They are called “mandated reporters.”
Typically, a county social services agency will be asked to take action. And often, social services will call in a special law enforcement unit called Adult Protective Services. The actions of Adult Protective Services are not public. You cannot get access to their reports, and you cannot find out what all these people have been saying about you—so unlike a criminal, you cannot “confront your accuser.”
At that crucial moment, if you have created the proper documents to give someone a “durable power of attorney for property” in case of your incapacity, along with a “durable power of attorney for healthcare,” or an “advanced healthcare directive,” someone you have previously designated can step in and take control from the county. Importantly, this agent working on your behalf can prevent action by a court to create a “conservatorship” for you. As we will see, a conservatorship represents a serious loss of rights.
Of course, your incapacity may happen much faster, and be more serious than writing questionable checks.
JACK CAUSES A CRISIS
Let’s say Jack, who has been widowed for many years, has a major stroke at age seventy-four. Now he’s lying unconscious in a Chicago hospital. He was on the golf course and just collapsed. The doctors say that Jack may or may not recover from his stroke. In any case, he will definitely need daily physical care for years and will not be able to handle his own affairs.
Jack has two children, Charles and Mary, who live on opposite sides of the country. He also has a sister in Chicago, named Eleanor. She’s seventy. All these folks have always gotten along, but over the years, they’ve kind of fallen out of touch.
Jack owns a house with some equity, but everyone figures he’s still making mortgage and insurance payments. He has multiple bank accounts and investments, but no one’s quite sure where they are. His valuable sports car still sits on the lot at the golf course. That’s about as much as anyone knows. After all, Jack was only seventy-four, and until today, he was competently handling all of his own affairs.
Now Charles and Mary, who are both in their late forties, with careers and kids, have flown in to stand at Jack’s bedside. Eleanor and her husband have shown up too. Charles has already been over to the house, and he found that Jack did make a simple will using an online service in which he divided everything nicely between Charles and Mary, with Mary as executor. But Jack never created the essential documents you will learn about later in this chapter. He never created a living trust. And he never designated powers of attorney for property or healthcare decisions.
Plus, well, he’s still alive. So, now what?
If Jack had died, Mary would have taken over as executor, and after the funeral, she would have gone to probate court to get the will certified. She’d have struggled through the painful process we described for Bob Jr. in Mistake#10, but she would have figured out how to sell the house, settle Jack’s debts, and divide what remained between herself and Charles.
Now, however, all has become uncertain. Of the people standing next to the hospital bed, who will take control of the situation? And what about those not standing next to the bed, who may want to become involved? Many decisions will need to be made, and quickly.
The hospital (about $10,000 per day minimum and paid by Medicare) plans to discharge Jack to a rehabilitation center ($800 per day and paid by Medicare) that same afternoon. After that, Medicare may pay part of his care up to one hundred days per calendar year. Or maybe not. It depends.
However, if Jack stops physical therapy, occupational therapy, or “plateaus” while in rehab, Medicare stops paying. Then, because he has no long-term care insurance, he’s on his own. He’s looking at $3,000 to $30,000 or more per month depending on where Jack lives and the level of care required. Jack, or his family, will pay for this care out of pocket.
Since he’s not able to make his own decisions anymore, Jack’s on someone else’s watch. But whose?
Jack’s sister, Eleanor, steps up to say she knows about a really excellent care facility not far from Jack’s home. It costs only about $4,500 a month, and a friend said Jack would love it. Eleanor also takes that moment to mention that Jack still owes her $20,000, which she says he borrowed from her five years ago. She tearfully recalls how she and Jack made a childhood pact to take care of each other if anything happened. Her husband puts his arm around her in support.
Jack’s daughter, Mary, points out that she was the one named as executor in the will, so no doubt her father would like her to take responsibility now. Mary believes that the disabled are best cared for by those who love them. She thinks that any facility which only charges $4,500 a month in the Chicago area probably provides substandard care. She’s willing to have Jack flown to her home in Boston, and she will take over his care with the help of some visiting staff. Of course, even the trip would cost a considerable amount of money. She thinks she’ll also need about $35,000 from Jack’s estate to expand her guest room and add a bathroom he can use while in her care.
Her brother, Charles, gets a little annoyed with both of them. After all, his father may recover any day. Can’t they just wait until the one-hundred days (or less) are up in skilled nursing to make any decisions? And anyway, all these options are expensive. Can Jack’s estate even pay for it? How can they know? Will the house have to get sold? What if he wakes up and his house is gone? Also, right now, the hospital wants someone to sign off on the discharge plan. And by the way, the golf course would like to see the car removed from its parking lot.
Charles would love to help, but he has a job in Los Angeles he needs to get back to right away.
The next day, both Mary and Eleanor call some banks and are surprised to discover that neither of them has the right to access Jack’s accounts without going through an emergency court process. As the arguments escalate, it becomes likely that both Mary and Eleanor will petition the court to become Jack’s conservator (more about the meaning of that term in a moment) and get access to his accounts.
Soon, all three of Jack’s closest family members grow to dislike each other. Mary gets mad at Charles for being unhelpful, and she starts thinking she deserves more than 50 percent of that will. In probate court, Eleanor again mentions getting reimbursed for her undocumented $20,000 loan.
But there’s more.
As Jack’s financial records come to light, they will become a matter of public record, along with all his debts. All the other relatives within a second degree of kinship will have to be notified—including the children of both Charles and Mary, some of whom are old enough to care what happens to grandpa and his money.
Both Eleanor and Mary have petitioned to have themselves appointed as conservators, but neither understands quite what she is asking for. Whoever becomes conservator will shoulder a considerable burden, and thanks to the ill will created during a court proceeding, she may be under continuous scrutiny from the others. She will have to provide an accounting to the court, down to the penny, every two years. This will include submitting a ledger with everything in and everything out; the growth or decline of investments. The works.
Meanwhile, Jack’s care will begin eating up his estate.
Whoever takes charge will have to make tough decisions, possibly resented by the others, about selling or renting the house and liquidating investments. The legal process itself will likely consume thousands, if not hundreds of thousands of dollars—depending on the value of the assets and the length of the fight. The same attorneys who practice probate law practice conservatorship (or guardianship) law, and they do not come cheap.
In the event that none of the three closest relatives applies to be conservator (or is approved by the court), then the county judge will appoint a “neutral” party—either a private professional fiduciary or the “public guardian” to take control. The public guardian’s office is typically a county agency that looks out for the indigent. As it happens, the “indigent” sometimes have money but are poor in family. Or poor in family that cares.
For more information on how you can create an Estate Plan that will protect you and your family in any situation, contact our team today.
