by Attorney Alyson C. Fudge, Founder of the Lowcountry Law Office on Aging, Mental Health & Disabilities, LLC. 

As the adult children of aging parents, we are often put into the unenviable position of continuing to parent our own children while taking on more and more of the responsibilities of managing, caring for, and sometimes— “parenting” our parents. Just like parenting our children, there are no classes we can take so that someone can teach us what to do, what not to do, or when to do or not do it. Instead, we tend to figure most of it out as we go along.

So where to begin? For many of us who work with seniors on a daily basis, the following rule continues to be the best guide: First, the legal issues need to be addressed. Secondly, the financial issues need to be addressed. The rest is social work.

The legal issues come first because, before anything else can be accomplished, a determination needs to be made as to whether or not Mom or Dad has mental capacity. Does Mom or Dad consistently make safe and appropriate decisions to manage and safe-guard their health and financial welfare? If the answer is “yes”, then mental capacity is likely present, and we can move on to the next hurdle. If the answer is “no”, then we have to question whether or not Mom and Dad appreciate the risks of their unsafe decisions, and whether they are ready, willing and able to face the consequences? If the answer is still “no”, we have a mental capacity issue.

If Mom or Dad has mental capacity, then either or both of them can sign all of the appropriate documents needed to enable an adult child to help them. The adult child can then pay the bills and apply for benefits—i.e. address the financial issues. Finally, with the appropriate legal authority, an adult child can talk to Doctors, help make medical and living decisions, and any other issues which may arise—i.e. social work.

However, if Mom or Dad lacks mental capacity, we have to address that issue first because without mental capacity, Powers of Attorney cannot be signed—with respect to health or to money and property. Without legal authority, an adult child cannot apply for Medicaid, Veteran’s Benefits, sign Mom or Dad into Rehabilitation following a broken hip, hire caregivers, or make any medical decisions.

Instead, the adult child must petition the Probate Court for a formal finding of incapacity and for the appointment of a Guardian and a Conservator for Mom or Dad. The Guardian is the person who makes medical, living and placement decisions, and the Conservator handles the money and the property. Once a Guardian and a Conservator have been appointed, he or she will be given the legal authority to pay the bills, sell property or apply for benefits—i.e. address the financial issues, and talk to Doctors, make medical and living decisions, and address any other issues which may arise— i.e. social work. At the end of the day, the rule applies to all—Address the Legal Issues first. Address the Financial Issues next. The rest is social work.

Here is a list of the Top Five Most Common Myths about the law and aging:

1. I have a will, so my estate will not go through probate.

The whole purpose of a will is to go through probate. That is the sole job of a will. Probate is the process of transferring assets out of the name of someone who has passed away and into the names of whomever they are supposed to go to next. This process occurs in the Probate Court in which the decedent either died or owned real estate. If you die with a will, the will provides direction as to who gets what and who is responsible for taking the estate through probate. If you do not have a will when you die, there is a statute in each state which lays out a plan since the decedent did not decide for him/herself via a will.

2. I have Medicare and a supplement, so that will pay for caregivers or a nursing home.

Our system is set up to recognize two distinct areas of need and issues: Medical care/issues and Long Term Care needs/issues. Medical Care includes doctors, hospitals, prescriptions and brief nursing home rehabilitation stays under certain circumstances. Your health insurance pays for Medical Care and Medicare and your supplement are health insurance. Long Term Care involves caregivers and/or facilities like assisted living and nursing homes. Your health insurance does not and will not pay for this type of care—including both Medicare and Tri-Care. This type of care is paid for either individually and privately (write a check out of your account), by long term care insurance or by Medicaid.

3. Mom/Dad/Spouse has Dementia and the memory loss and confusion is noticeable and occurs regularly – it’s time to have her/him sign a Power of Attorney.

Just as you cannot wait until your house catches on fire to buy your home owner’s insurance policy, you cannot wait until someone has issues with mental capacity to have them sign the documents which are supposed to be done Prior to someone having issues with mental capacity. If symptoms exist, it is likely too late to start waiving legal documents under a person’s nose. We have laws against that—and they involve the word “felony.”

4. Mom/Dad/Spouse is lucid and still recognizes everyone – therefore, she/he is NOT legally incapacitated.

An incapacitated adult is someone who, by way of physical, mental or medical limitations, needs assistance to make major decisions and manage his or her affairs. This includes needing help managing money, remembering medications, remembering what the doctor said and understanding and making major medical decisions, etc. Just because someone can carry on a perfectly lucid and logical conversation does not mean that they are not incapacitated.

5. I am the spouse or the child of a sick or vulnerable adult, so as the “next of kin,” I can make legal and medical decisions and manage money.

Spouses and adult children do not have magical legal rights to make decisions for another human being. This pesky little thing called the US Constitution gets in the way of that concept. The only way one adult can manage the affairs of, or make decisions for, another adult is by way of actual legal authority. This legal authority comes either from Powers of Attorney signed before there were any significant medical and mental issues, or by way of a Court Order. Being “next of kin” doesn’t provide clarity to the issue of who can or should be making decisions for Mom or Dad. It just muddies the waters.