No question about it, Americans are living longer. My own family is a perfect example. My great grandfather died at age 65. My grandpa died at 82. My dad passed when he was 90. Longer lifespans are becoming much more common. And with that longevity often comes added responsibility for adult children to care for their aging parents—physically, emotionally, and financially.
It can be tough for a parent to give up control of their finances and their life, even in cases of diminished mental capacity. Some estate planning attorneys correctly predict this possibility and make the trust language easier to work with when a parent has to be removed from the position of authority. Other lawyers put horribly burdensome language into the trust, almost forcing the adult children to go to court, even when the parent is cognitively impaired.
AgingParents.com mediates such family conflicts, especially when the children have to take over against the elder’s wishes. Aging Parents.com warns about the dangers of badly written trusts. They list several points you need to find out about and correct, if necessary.
- If your aging parents have a trust, invite a discussion about what would happen if a medical condition rendered an aging parent unable to competently manage finances.
- Look at the trust language about “incapacity”, a legal term. It is typically defined in the trust. If it says anything that necessitates going to court to have a judge say the person is “incapacitated”, that’s a red flag for bad trust language. Who wants to take a parent with dementia to court for all the world to learn that he or she is incapacitated?
- Dementia is a real risk to every older person. No one gets it overnight and it’s common to not understand that one is actually impaired. That is the danger: it impairs money management along with lots of other things. Any trust should contain a way to remove an impaired, unaware parent from managing the trust (assets, cash, etc.) in a way that is private, and does not require two doctors, going to court, or other dreadful burdens on the ones who need to remove an aging parent from the seat of control.
- Ask your parents how they want things handled if they need to step down but don’t don’t understand and the adult child has to legally remove the parent. Look at their trust with them and dig into the piece about incapacity, and “removal of trustee”.
- If your aging parents have a trust with burdensome language in it about incapacity, ask them respectfully to consider your responsibility and have the trust fixed (“amended”), to lessen the burden that might happen to you. That means going to an estate planning lawyer and revising that language.
If the time comes that you need to step in and take care of mom and dad, don’t be restricted by words a lawyer put into legal documents. It’s worth the effort now to find out what the trust says and how it might limit your ability to take care of your parents. Getting a trust corrected/amended now may save you substantial time, grief and heartache later.
