My 93-year-old mom is having anxiety about legal decisions she has made and now wants to change this situation. Please advise.
My mom has lived with me since 2005. My dad is deceased since 2002.
She has my name on her checking account so I can purchase her medication and other items needed.
She has a small savings account that she has her name and younger brother‘s name on. She also has him named as executor of her will. The will needs to be updated. She has a deceased brother’s name on it and so forth.
She is 93, Parkinson’s disease and has really slowed down. I have been telling her that she may need to go into a facility, either assisted living or nursing home at some point. I have explained that if funds are needed for the assisted living facility she needs to free up funds for her care. I do not trust my brother to release funds. He has never been responsible with money.
My brothers think as long as I am doing all of the caregiving that everything is fine as is. No matter how much I have tried to explain situations, they are clueless and basically uninvolved in her care or even just visiting her.
I think the message is finally starting to sink in with mom and she recently told me she wished to remove my brother’s name off of saving account and placing in my name because I have medical power of attorney for her. She also wants him removed as executor because she has realized he isn’t responsible or capable of handling the tasks that will be involved. He will just ask my older brother to help him. He doesn’t even know how to file his taxes. My husband has done it for him for years. I am the primary, full time caregiver in my home.
She also wants to update her will and leave some to my brothers and leave the bulk to me to handle necessary expenses, her burial in family plot and so forth.
She doesn’t get much social security. I will need veteran assistance if she goes into assisted living. If not she may end up in nursing home.
Do I discuss any of this with my brothers or just keep it between mom and me? Do you feel WW111 will break out if they aren’t told? What if she suggest telling them? I fear that. She loves them. They are her sons. She is disappointed in them at times and has made excuses for them as well, nevertheless loves them.
Do I need a lawyer for these answers or can anyone here help? Would appreciate views on online site Legal Zoom. Has anyone used it? Need a living will for mom too.
Appreciate any advice. Thanks a million!
40 Answers
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You answered my questions perfectly. Thanks so much for taking the time to reply and share your experiences. I appreciate it.
I am in a similar situation with mom of same age. Only I am the only living child. If Mom were able to do things on her own, there would be no reason for me to be involved with her legal papers including her will. But she is unable to do these things for herself, so, like you, I help her.
Now here is the kicker. No one, absolutely no one, is owed an explanation of any of your mother's legal affairs. With a will, my feeling (and this is how I was raised) is that if anything is left (money, property, etc.) to someone, that is a gift, NOT an entitlement. Anyone who is on the receiving end SHOULD be appreciative and grateful, NOT feeling as if they are owed something.
You are the responsible one, and acting as the extension of your mother carrying out her wishes. Please do not feel obligated to discuss with the others.
But DO have an attorney draw up the legal paperwork.
My husband's mother had comparable issues, wanting to leave the bulk of her funds to the three sons and not to a very difficult daughter. Her lawyer suggested that she disbursed the money as gifts to the sons, and then left the remainder in equal shares, which she did with no issues. DH and I were quite clear that if she had ran out of funds for care, we would be returning money to her. My first MIL also had comparable issues regarding a second wife and her sons, and she saw her lawyer separately.
I think it would be a good idea to make a list for the lawyer of the issues you have talked through with mother, and also ask him or her for a confirmatory letter about the process - in particular that your mother was legally competent, that she was interviewed alone and was clear about her wishes, and that the lawyer saw no signs of undue pressure on her. Don't do it by email - they get deleted. Take a photo copy of everything. You don't want to lose the records in case of future issues. This really is something to do with a lawyer, because of the possible problems down the track. The living will may be something you can do on a local form, but not the estate will. I'm a lawyer, but not in your jurisdiction, and this is the advice I would give (and also the advice we followed ourselves with DH's mother and my own MIL).
My mom won’t do anything alone anymore. She can’t hear well. Even with hearing aid. She does read my lips some. I hate having to shout all day! It wears me out. I try to write things down sometimes. I even thought of maybe making signs so I won’t have to keep writing the same thing. She gets upset sometimes if I write because she thinks it is more personal to speak and I agree but I get so very tired repeating and screaming.
At first when she asked me to go into doctor’s office I felt like I would be intruding on her privacy and said no, that I wasn’t comfortable with it. That’s when she said, “I need you to be my ears and there is nothing that you can’t hear.” So I joined her in office instead of staying in waiting room.
She has trouble if people speak fast fast or turn away. She tries to read lips.
Maybe I could request something to be typed up for her to read in large print.
She has her sound mind. So now is the time to do it.
I appreciate your advice. Very helpful.
I think the concept of “legal” competence may vary from state to state, but I also think that if you initiate a change in her will without some proof that she is mentally competent to carry out the change, the legal POA could challenge it.
If there is evidence of altered thinking, you will have to have some determination based on objective criteria.
Hoping everything works out to your mom’s advantage.
We don’t have a POA. I only have medical power of attorney. My mom’s doctor told me that I should get POA too. I guess I should. Trying to tie up loose ends so mom can relax.
I am planning to look into getting assessment for her.
My two cents...This is strictly my opinion based on personal experience and acquired knowledge while having to care for my mother who has dementia alzeimers. My wife and I experienced a lot of legal challenges and collateral situation of my brother and his wife.
It boils down to this....tell mother, "ok mother let's get everything done with your will, setup of you finances, etc., everything you have wanted done...let's do it. "
Obtain a good reputible elder attorney with whom you and mother will walk through all the things she wants done. She seems very specific in what she wants. You can at this time inform your attorney of the many years of your mother's care and welfare. That sibling never have cared.
If she's mentally capable, then enquire about a POA to cover the areas of care and management needed. This will protect you and mother when you proceede to the next levels of her care. It will be a sound platform if for any time or reason you may need to combat siblings to possible petition for guardianship.
If mother has a significant nest egg of finances, your attorney can inform you of ways to protect this (trust funds) while positioning her to qualify for state funding for assisted living, etc.
There will be flak from family siblings, but the POA will reinforce your your stand and actions legally.
Speak with your attorney regarding all these things.
Also, listen carefully of what path he or she may suggest you take. Elder attorneys are very much aware and have experienced a lot regarding what elders specificly go through or what's done to them and what can been done to protect them and their caregivers.
Get moving right away!!!
Hope this helps.
Blessings
Documents are tricky to make yourself. I made one for executor from a library book. Turned out by Florida law, the signature lines were reversed and I would now need a probate litigating attorney to argue it. Money was now trapped in her checking account that I needed for her expenses So I am letting it stay there for 3 years until it is turned over to the state's unclaimed funds.
As for living wills, hospitals want you to have them if they have a DAR (Do not resuscitate). Other wise they do what they want.
Wills are useless too unless you go into probate. But you don't want to do that because they will insist the money go equally to the three of you.
Do all this before she passes as your POA will have no standing afterwards.
Assisted Living Facilities (ALs) in NJ accept Medicaid but on a very limited basis;they are legally allowed to designate a small per centage of their "beds" as Medicaid beds. They usually require a period of "private pay" (maybe 2 years) before they will consider a resident for Medicaid but the question is will a Medicaid bed be available when you need it. It they have not guaranteed you a medicaid in your written contract, they can ask you to leave and at that point you would need to apply for a Nursing Home (NH ) placement. Medicaid in NJ takes a five year look back - no gifting allowed - and the spend down amount is to $2000. You are allowed to prepay funeral/burial cost but it must be irrevocable trust. If she can afford it and there is a good one in your area, you may want to visit the idea of her moving to a CCRC (Continuing Care Retirement Community). The upfront charge is significant but for that amount you are "buying" into the entire health spectrum from independent living to NH even though you are still required to pay a monthly fee for whatever level of care you are at.
As fast as possible,
1. Get a mental health assessment done. Check the internet to see what's required in your ( 1 MD or 2, doesn't it have to be geriatric specialist?).
2. get to see a certified (look for a list on the internet to make sure they are really certified!!) eldercare attorney in your area. They can give you advice tailored to your situation and to the way Medicaid operates in your state. also ask about the situation with the banks. Banks are notoriously rigorous about PoA status; many require that you use their PoA papers in addition to any other you may have. Make sure your PoA is Durable and not just a General one. Get the Will and Advance direction done quickly.
3. Start to research facilities (AL and NH) in your area. Start your search on medicare.gov but always visit (one than once and at different times of the day).
Yes, item 1 & 2 are going to cost money but believe it is well worth it.
My own feeling having witness this more times that I care to admit is that after you speak with the lawyer and have the assessment done is that your mother, perhaps in the presence of the attorney needs to advise your siblings of the change in status. Don't expect them to be happy about it but at least they can vent before your mother passes and maybe come to grips with the reality of the situation.
Good Luck, and God Bless. Many hugs to you and yours.
Not familiar with all of that. My mom lost everything in Hurricane Katrina. I don’t have any documentation. We were scrambling to leave the city for the storm, thought it would be like most other storms and was anything but. Mom had nine feet of water. She did not live in a flood zone but due to the levees breaking, the city flooded in areas that had never flooded before.
Nevertheless, we will see what can be done. Again, I appreciate your help. Thanks.
When you're making the appointment with the lawyer, inform the secretary that your mother is hard of hearing and requires large print. I agree that you should let her consult with her attorney in private. Drive her to the appointment and go shopping or wait at a nearby cafe. Tell the secretary to call you when she's ready for pickup. That way, no one can ever accuse you of undue influence.
Your mother does not need to ask her sons for permission to change her will, her POA, or withdraw her money from her savings account in order for those funds to be available for her expenses. Use some of those funds to pay for the attorney.
After my MIL died, my husband made arrangements to purchase the spot next to hers for his dad. He negotiated a 0% interest monthly payment that's affordable. Maybe you can arrange something similar for her where your dad is buried.
My inlaws changed the executor of their wills without telling the former executor. The former executor's feathers were ruffled and so what? His parents changed their wills because their circumstances changed. No explanations needed.
I in no way want to keep my brothers from my mom. I wish that they were more involved in her life. Sadly, they never were. They went about living their lives, not judging them for that, they have the right to do as they please.
However, the old saying, “Can’t have your cake and eat it too.” comes to mind. They want to be recognized by mom, without doing anything for her.
She feels hurt by being ignored by them. She used to make excuses for them to make herself feel better but no longer does. She saw it herself. Give some people enough rope and they hang themselves, right?