Communication and Planning

February 21, 2017 by Elizabeth Ruthmansdorfer

Even the best of families have problems.  Also, the best planning can fail when the family fails.  So what do you do?

Recently, I was called to the home of a lady who wanted to change her estate planning documents.  Two of her children lived with her and one did not.  The one that did not was the financial agent and felt that the children living with mom were manipulating her.  Financial agent daughter sued for guardianship.  Mom proved her competence.  Now she is understandably angry at the financial agent daughter.  But, from my perspective, there is some manipulation going on by the children living at home.  In mom’s case, her trust document does not allow for many changes.  She does not want any of her children as the financial agent any longer.  So what are her choices?

I had another situation recently where a caregiver child just couldn’t do it anymore.  She brought mom to a memory facility.  Another sibling was angry that caregiver child “gave up.”  This sibling took mom out of the facility and into his own home.  Three days later, he brought mom back to the facility.  But, the damage to the family relationship was already done.  Now that guardianship is necessary due to a defective financial power of attorney, these children are already at odds.  What can be done?

Although it won’t solve everything, good communication at the start of estate planning is necessary.  I often encourage my clients to talk with their family about their wishes.  I ask them to write letters to children, if necessary, regarding why they chose to do something in a plan that could cause problems later.  I ask them to make sure there are enough backups to cover situations where the first agents cannot act.

When communication fails, the law begins.  For the first lady, she is competent.  We are able to change some of her documents.  We can change agents and change trustees.  She needs a third party.  Some attorneys will act in this capacity.  Some banks, with the right deposit amount, will act in this capacity.  There are also agencies such as Fiduciary Partners that will act as an independent agent.  For the second lady, she does not have capacity.  But, I have a good guardian ad litem.  This means we can construct a guardianship solution to best protect mom and make sure the children feel heard.  We can get the authority we are missing in the power of attorney through the guardianship and remove some of the financial difficulties that had been exacerbating the situation.

The bottom line is communication and having an expert attorney available.  Plans that have included communication fail far less and the individuals involved have higher satisfaction with the process.  Beware the attorney who practices a different kind of law but says he or she can draft a will.  A “simple” will cannot cover the health care issues, the financial power of attorney issues, the elder law or guardianship issues, the tax issues, etc.  Each person’s situation needs to be examined carefully.  Hopefully, with good planning and a good attorney at one’s side, if the family fails, the plan will not.

Attorney Elizabeth Ruthmansdorfer