When your parent won't do Estate Planning

Dear Len & Rosie,

My mother is very young, only 60 years old, but she has a degenerative brain disorder that has caused early dementia. She lives in southern California, so from long distance, we have tried to get her to agree to having help in her home. She is resistant to this idea. She no longer sees her neurologist because nothing can be done for her. Right now, she doesn’t even have a doctor. My sister does have an advance health care directive our mother signed a few years ago.  How can we can get her the help she needs either in her own home full time or in a retirement home?

Karen

Dear Karen,

There’s not a lot that you can for your mother against her will. Even if her advance health care directive gives your sister immediate authority over medical decisions, your mother has the right to make her own choices, even bad choices, concerning her medical treatment. Your sister can take over if and when your mother’s mental condition deteriorates to the point where she can no longer care for herself. But until that happens, your mother remains in control of her own life and she has the right to make unwise decisions.

Many people suffering from early dementia or Alzheimer’s disease confront their condition only reluctantly, when it becomes obvious to all concerned that they need day-to-day help. Since your mother legally still has mental capacity, you cannot just barge in and take over. You need to calmly persuade her that she needs help, and that she will have more independence in her life if she accepts help now, rather than stubbornly living alone until injury or self-neglect forces her to leave her home.

If your mother is willing to help you help herself, she should update her estate planning documents by giving you or your sister a durable general power of attorney in addition to her advance health care directive. If she has a revocable trust, it is probably a good idea for her to resign as trustee and let her children manage it. If she does not have a trust, she ought to create one now.

Your mother should also consider Medi-Cal planning. If her condition is progressive, there may come a time when your mother is physically and mentally incapable of living in her own home, or even in an assisted living facility. It is a difficult issue to confront, but your mother may eventually need nursing home care. By acting now, she can help shelter her assets from expensive nursing home bills. Remember that the goal here is not for you to take over your mother’s finances and ship her off to a nursing home for her own good. But you do need the tools to provide care for your mother to the extent that she needs it.

If she refuses assistance, then you may have to wait until she is clearly incapacitated. At that time, you can act on her behalf if you have a durable power of attorney. If you don’t, you may have to file for a conservatorship over your mother, which will get the court involved making things more complicated to deal with than if your mother has an estate plan.

Len & Rosie