10 Questions With Elder Law Attorney Harry Margolis
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.