How to Protect a Parent With Dementia Who Has Greedy Children
By Lane V. Erickson, Idaho Estate Planning Attorney
I often have children come to me for legal advice about their parents, and their parent’s estate planning. In many circumstances, the child I am meeting with has concerns because the parent is beginning to have dementia and there are other children that have acted greedy about their parent’s estate. Sometimes it’s even worse than that. Sometimes, these children have actually already done things to try to take advantage of their parent or to even begin taking property from the estate while the parent is still alive.
Our goal is to help each of our clients create a customized estate plan that will provide protections for them while they are alive, and will distribute their money, property, and other assets to their family members and others after they have passed away. The main goal we have is that we want to accomplish what are clients intend to accomplish. In other words, we work to learn what our client’s intent is, then we work to accomplish that intent in a way that will protect both our client and our client’s estate.
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So, how do you protect a parent with dementia who has greedy children? The good news is, there are many things that can be done. The purpose of this article is to discuss some of these things. However, a short article is never enough to provide all the answers that a person may have about this issue. If you have concerns about your parent, and about how and what can be done to protect that parent and their estate from greedy children, we can help. We encourage you to contact us for a free 30-minute consultation to discuss your circumstances and what we can do to help protect your parent.Who Was Named in the Powers of Attorney?
The first area of protection that we discuss with our clients is using their powers of attorney. A basic estate plan always includes at least a durable power of attorney and a power of attorney for health care. These documents allow our clients to name a specific person or persons who will have the ability to make legal decisions for them if because of their dementia they lose the ability to do this for themselves.
In most circumstances, in order for the power of attorney to be effective when it comes to naming a child, there is some triggering event that is required. In many of the durable power of attorney documents that we create for our clients, we require two licensed physicians to certify in writing that the parent is in fact incapacitated. Once this happens, the child who is named to hold the power of attorney has the legal authority to act on behalf of the parent.
However, there are some limitations in what this child can do. For instance, there is specific language in the durable power of attorney document that prohibits that child from gifting or giving away their parent’s estate either to themselves or to anyone else. Rather, the language in the power of attorney makes it very clear that the child is a fiduciary or representative of the parent and is required to use their best efforts to utilize the money, property, and other assets in their parent’s estate for the benefit of the parent. If this is not happening, then this person can be removed from holding the power of attorney.Protecting Against Undue Influence and Coercion.
The next area that needs to be discussed is how do you prevent a greedy child from unduly influencing or forcing their parent to change their written estate planning documents. This is an area that we take great care in, when it comes to doing estate planning for our clients. Whenever a parent comes in with a child and wants to discuss the parent’s estate planning, before I talk about the estate planning I always have a short discussion with the group first. I do this for the purpose of watching how the parent and the child interact, and so I can make a decision about the next step.
If I am concerned that there may be undue influence occurring or that a parent is being forced to come and change or create their estate planning, then I specifically excuse the child from the room. As an attorney, I am required to keep everything I do for my clients confidential, which includes talking about or creating an estate plan. Because of this, I can require children to leave the room, so that I can have a conversation with the parent alone. If I suspect that a child is influencing or forcing a parent to do something with their estate planning, I go through a series of specific questions to determine whether or not this is happening.
Sometimes these parents will ask me for help. However, sometimes they don’t. Even when this happens, if I suspect the child is forcing with parent to be there, then I simply refuse to do the estate planning work. I also invite the parent to come and meet with me again individually and alone so that we can discuss their estate plan in an environment where they are comfortable.What Do You Do When There Has Been Outright Fraud?
Even with all this care, sometimes bad things happen. If a child, or a parent comes to me with any information showing me that there has been an outright fraud against them or their estate by one of their children, that I take some very specific actions. First, I strongly suggest to that child or parent who has come to me that they immediately contact the authorities and Report the fraud. Second, I specifically encourage these clients to change the estate planning to prevent any further bad acts from happening.
Next, in some severe circumstances, I send letters to the children who have done the bad acts demanding that they reimburse or return the items that they have taken through their fraudulent actions. Also, if necessary, I file litigation or lawsuits against these children in order to correct the bad things that have happened.
I have been an estate planning attorney long enough now that I have seen some of these things happen to my clients. I have always been there to assist and help my clients correct these problems and make sure that their estate planning is in place to protect them and their estate. If you have questions or concerns about yourself, or a parent oh, we are confident that we can answer your questions and help you. Please contact us for a free 30-minute consultation to discuss the issues you are concerned about.Enlist an Idaho Estate Planning Attorney to Help You
Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation. You can also email us directly at firstname.lastname@example.org or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.