10 Questions With Elder Law Attorney Harry Margolis

elderly couple talking with woman

What can you do if a family member is losing the ability to manage his affairs and is making bad decisions? We sat down with our elder law expert, Harry Margolis, for insight into this difficult situation. Margolis is the founder of Boston-based law firm Margolis & Bloom and founding president of ElderLawAnswers, which provides online tools and resources to seniors and their families.

Here are ten things you should be aware of.

  1. When is the best time to plan?
    The best time is now -- when your parent is healthy and competent. However, if there hasn't been any planning, it's never too late. It might not be the same kind of plan if it had been earlier on, and you might be more limited in what you can do, but you can make adjustments to meet the needs of your parent. There's always something that can be done.

  2. What are some strategies to begin the conversation?
    There isn't one answer here as it involves different feelings and relationships. If the child has done some estate planning, you could say something like, "My husband and I took care of our estate planning and we feel a lot better now that we have our affairs in order. It made me think about whether you've taken care of this."

    Or you could relate the situation to what a friend is going through, such as: "Mary is having a lot of trouble because her mom had a stroke and had to enter into a nursing home. I'm worried how this will work if anything happens to you and I was wondering if we could meet with an attorney." This conversation is for the child, about the child being fine. Hopefully the parent will want to take care of it.

  3. Is there a right or a wrong way to address the situation without putting the parent on the defensive?
    In most cases you should consult other family members and siblings first, depending on the relationship. This is to ensure that everyone is on the same page and to smooth over any initial misunderstandings. If the kids are able to discuss the matter first, it will demonstrate a united front when they present to the parent. There is a small risk of putting the parent on the defensive, but if all the kids share this concern, it will be more persuasive. Not everyone has to sit down for the conversation either; maybe it's one family member addressing concerns for the others.

  4. What are the next steps and what might be different based on decision-making ability?
    It depends on how perceptive the parent is. Hopefully they have some capacity in their decision-making ability. In this case, the next step would be meeting with an elder law attorney to dictate what they want and put a plan in place. If there's more than one child, the best thing would be if everyone was involved in meeting with the attorney so there's transparency. In the instance that not all family members can be present, communication is key and everyone still needs to be aware of the decisions being made. This is assuming that there is no split in the family.

  5. How do you balance a family member's independence and safety?
    This is a tough one. People have different opinions on the matter and there may be as many opinions as people in the family. This is a balancing act that can only be reached on a case by case basis. Assessment may differ depending on the risks involved. An idea would be to hire a geriatric caregiver

  6. What are the documents that need to be in order?
    Listed in order of importance:

    • Durable Power of Attorney
    • Health Care Directive
    • HIPAA Release Form
    • Will & Replicable Trust

    If you can't take care of all of these things, start with the top.

  7. Is there anything specific to estate planning that families should keep in mind?
    The most important concern for estate planning is figuring out if you want to protect assets and qualify the parent for Medicaid to pay for care. A lot of things require a five-year waiting period, which should give families incentive to plan ahead. To manage these affairs, you want to find someone who not only has experience with estate planning but also long-term care planning such as an elder law attorney.

  8. My siblings and I don't agree about the next step regarding our parent's estate and fight every time we talk about it. How do we proceed amidst this controversy?
    Make sure everyone has all the facts. Sometimes disagreements arise because of miscommunication or misunderstanding of the options that are available. For example, I came across a couple that was arguing over something for years but it wasn't until they met with a lawyer that they realized the root of the disagreement and it went away. The greatest concern here is getting everyone to participate and if one person isn't willing, you won't get anywhere. Depending on the situation, bringing in a third party, whether it be a geriatric care manager, attorney or mediator, could help cool tempers and focus on what the goals are. It's better to solve this way than ending up in court.

  9. I think dad is afraid we're trying to take control of his life by handling his estate and other affairs for that matter. How can we help him not feel this way?
    There are two approaches to the situation. The first is assessing how far gone the parent is. If your dad is mentally still intact then have him hire an attorney, financial planner or accountant (whatever professional he feels most comfortable with) to be the driving force. If he's incapable of taking charge, encourage subterfuge. Maybe being able to write checks is his understanding of having control over his life. If you're going to let him write the checks, then make sure to monitor the account or maintain a certain balance in that account. A smart way to do this is through online banking, which can keep the situation from spinning out of control.

  10. What if the parent is being difficult and isn't receptive to this change?
    Do the best you can while the parent is legally competent. If the children are worried that the relationship will rupture by pushing too hard, some of the matters may need to be worked out without involving the parent. Ultimately when there are no other options and the parent is no longer competent, you might have to go to court to become a guardian or conservator. Sometimes a judge's ruling is the final push down the path of acceptance. They can't fight it if it's the law.

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Comments (4)
Becky W.
In some communities there is a program like money follows the person. Check with your local council on aging or adult protective services
Posted: August 21, 2012 at 6:08 PM
Carol S.
need some veiws. my mother was diagnosed woth moderate dementia. she is 94, very and strong willed. she also has neuropathy in her feet. she took a fall and ended up in the hospital through med alert system. had tests, nnothing broken just wanting to go home very much. in the mean time my sister 5 days later, sets her up in nursing home and tells my mother she is there for rehap and will get out when she is better, when she completly had her signed in forever, got rid of her apt and didn't let me know until everything was signed sealed and delivered. Now she has washed her hands of even calling my mother, won't take her calls, and not sure if she will visit her anymore because my mom is angry at my sisster and i don't blame her. i went to visit 2 days before easter and my mom was sitting on the side of bed wanting to go home to her apt for just a night to visit. i couldn't say she had no apt. or belongings left but she is always insisting she wants to go home .I feel she was deceived in a huge way. she till this day has no idea her apt. is gone! on that visit my mother asked me did your sister put me in here forever and i has to say yes. she sat on the bed,hands over face and cried and cried,more than broke my heart.i called my sister from nursing home phone didn,t have my cell)and since she screens my moms calls, i had left two messages to call my mothers room ASAP. that was two days before Easter, she never called,and i said it was urgent, no calls!, not even on Easter Day! She turned all moms finances over to my oldest brother of which i have two. Now this big bro (kind of a trouble maker and never calls my mother and is close to my sister, im sure planned it together,wants a itemized list of all the contents that my other brother, whom i am close to,and myself have taken out of the apt.He stated this in an email letter to my sister,when he was agreeing to taken over my moms finances, but doesn't mention the contents my sister took. i am very close to my mother but she wants out of their so bad. my sister , by the way notified me all this by with text messages, and kept promising me she would call me cause i as soon as she got my mother as she said situated. and thats just what she did. wanted everything to be signed before calling me and never told me about my mothers apt. was EVEN GONE! I found out tby a nurse who had said my mom was a "sweet heart,but it's so sad about her apt being gone!" I was apolled! Called my sister , her husband screamed at me and said i had chose not to participate. My marriage is shaky and i kind of alienated away from my mom. But before that i called my mom every day and always called to say goodnite. She would never call my sister on weekends because her husband , my brotherlaw, was and didn't want to bother them. Then I offer to clean my moms apt. to my sister and she kind of responded I didn't have to. i told her i was headed over one day and she was adamant, didn't want me to go till the following sunday, which i had already been there once, to check out how much cleaning was to be done. Well i didn't go during the day she mentioned not to go , but i went that night. Well, my sister didn't want to go that day, because the reason was , was she went over and took every sheet, blanket, stereo, towels,silverware, flatware, MONEY my mother used to put in an empty baking powder can and store in refrigerator,don't know how much, but she used keep alot of twenty dollar bills, because she had me get money out of there before.So my poor mother has no idea her apt. is gone, I find out through a nurse, and i'm syre when i see my mother today she will mention either getting something out of the apt. or if she can get like a discharge day and visit her apt.I texted my sister and told her i will be with nmom on easter, but "what about her being told that she has no apt and she's in their forever. NO RESPONSE FROM HER! one more thing i was cleaning my moms aptartment, and talked to the manager about when everything needs to be out of there and when and how much does my mom get back for security deposit, in which he said 200.00 and takes about thirty days. Well my sister came by when i was cleaning, and i purposely brought up the security deposit and how much it was. Right off the bat she said it was 100.00 dollars instead of 200.00 dollars. So here it stands my mother still thinks she has an apartment,not sure if she realizes she's there for life and my sister has washed her hands of it and is ignoring my mother completly! Then "big bro who's taking over finances, wants an itemized list of things my other brother and I have taken, not my sister though.Please if you could, point me in the right direction as far as my mothers apartment being GONE and her not knowing it!, and that she's there for life! And my brother and his list.Thank you
Posted: April 11, 2012 at 12:14 PM
Luella Palmer
My ex-husband who I have close contact with even thou we a divorced, was recently put in a Nursing Home, she tricked him, had her Aunt drive him to a Nursing home saying they were going to visit someone, got him up on the third floor of the Nursing Home which has locked doors and told him, he was going to stay a couple of nights, he was diagnosed with Alzheimers 5 yrs ago and has a lot of memory and knows this is not right and doesn't want to be there , he needs an assisted living and I even said I would take him in my residence and care for him , as long as he gets his meals and medicine, he is fine, and I don't understand why my daughter would put him in this facility, where the patients in this unit , have no memory or know who they are. He does and I have a paper from a Dr. in this facility saying he doesnt belong in this unit. what can I do to help him , can he change his power of attorney, and how can I help him. He does Not deserve this.
Posted: April 26, 2011 at 7:44 AM
A.J. Peters
Allison, thank you for sharing this article. One other option for the elderly parent who is unable to manage paying bills, etc., is to hire a Daily Money Manager ("DMM"). The field of Daily Money Management is a relatively new profession (about 20 years). In today's fast paced society with people living longer; the Sandwich Gereration taking care of elderly parents and children, at the same time; more and more people living hundreds of miles away from elderly parents, Daily Money Managers are frequently helpful.

A DMM can assist with paying bills, reconciling statements, scheduling appointments, setting up direct deposit and automatic debit, as well as other daily money matters. Some may also monitor caregivers for family members living at a distance.

Apart from assisting senior citizens who are unable to manage their affairs, DMM also assist caregivers,travelers, and professionals.

To find out more about DMMs and to find one in your area, visit the website of the American Association of Daily Money Managers (www.aadmm.com) or e-mail: info@aadmm.com, or call 877-326-5991).

Thanks, again.
Posted: March 02, 2011 at 11:24 AM
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