Ask the Expert- Does My Mother Still Have Rights?

Published: Fri, 03/22/13


 
 

          Ask the Expert- Your Elder Law Questions Answered by Evan H. Farr, CELA
 
 Ask the Expert- Does My Mother Still Have
 Rights?
 
 
  
 
Q. My mother is 91 years old. She lives alone and takes care of herself, does her own laundry, cleans her house, fixes her own meals and does her own grocery shopping.  She is mentally healthy and is able to recognize her great-grandchildren and still remembers all their birthdays!

I went to my mother's doctor appointment with her and her doctor recommended assisted living because of her age. When she was visiting with my daughter's family for a week, my sister moved all of her furniture and belongings out of her home and over to an assisted living facility where she does not want to be. My sister is now lying to everyone about mom's "memory" problems.  My mother is so unhappy and tells me that she "feels trapped and in prison."

Can I move her back home (where she truly wants to be), and if necessary pay for in-home care (or someone to check on her daily)? My sister has threatened to call adult  protective services if I move her. Does my mother have any rights?
 
A. Since your mother is clearly legally competent, she should make her own decisions about where she wants to live.  Everyone is presumed to be legally competent unless a court determines that they are not.  If she moves home and adult protective services (APS) becomes involved, they will determine whether she is safe.  From your description of her, she is clearly still safe living on her own.  However, if APS determines that she is not safe, they may ask you or your sister to initiate guardianship proceedings to determine her competency and to have someone appointed to make decisions for her, in which case you and your sister would probably wind up fighting over who gets to be guardian of your mother and conservator over her real estate and financial assets.

A "guardian" is a person appointed by the court who is responsible for the personal affairs of an incapacitated person, including responsibility for making decisions regarding the person's support, care, health, safety, habilitation, education, therapeutic treatment, and residence.  However, a guardian is almost certainly not needed in your situation because your mother seems to be of completely sound mental capacity.

A much better alternative in your mother's situation is to ensure your mother goes to an Elder Law Attorney to sign a Financial Power of Attorney (POA). A Financial Power of Attorney, along with an Advance Medical Directive (AMD), are documents that prevent the need for Guardianship and Conservatorship, and are part of what is called "Incapacity Planning." To sign a POA and AMD, your mother must be able to understand the consequences of appointing an agent, and be able to communicate her wishes that she wants a certain person to handle her financial and legal and medical affairs.

Your mother should ideally consult a Certified Elder Law Attorney, such as Evan H. Farr, CELA, who can advise her of her rights and make sure they are protected. She can call the Fairfax Elder Law Firm of Evan H. Farr, CELA at 703-691-1888 to make an appointment for a free consultation.

In addition, the whole family may want to consider meeting with a elder mediator to get all issues on the table and to seek a resolution that satisfies everyone.


                         
       
 
Dear Saki and Alley,

I recently married my best friend, Mike.  It was a second marriage for both of us and now we have a blended family. He has three sons, Peter, Greg, and Bobby, and I have three daughters Marsha, Jan, and Cindy. To ensure that there are no conflicts or jealousies, how can we use estate planning to keep peace in our blended family?

-Carol Bray-Dee

 
Dear Carol,

This is Alley.  I have to defer to my sister, Saki, on this one.  She is the expert when it comes to keeping the peace. Just pet her in the waiting room and you will see how peaceful she really is! (and I am not just saying that for her share of the cat nip.)
 
Many Meows,
Alley
 
Hi Carol,
 
Every family has conflicts, jealousies, and positioning. My brother, Alley, for instance, is constantly jumping on people and clamoring for the attention of the humans (it's quite embarrassing -- I much prefer to sit pretty and allow the humans to come to me if they desire to pet me). In any event, blended families may experience these feelings more frequently than others.  To keep the fireworks on the 4th of July and not on any other day, implement these tips for using estate planning to keep things in your blended family harmonious and peaceful.

  • Avoid joint ownership and ensure your children inherit at your death- Do not own assets that you want to go to your children someday jointly with your spouse.  If you die first, the assets will go to your spouse and your children will have no right to them, ever.  Instead, own your assets in a Revocable Living Trust and direct where they go.
  • Get a Marital Contract- A Marital Contract is a contract signed during marriage to determine what happens to your assets when "death does you part."  A Marital Contract, or a Premarital Contract is often essential for couples with children from prior relationships.
  • Update your estate plan regularly- Update your estate plan if you have a significant life change such as remarriage, divorce, or a new child.  See our recent blog post on when to update your estate plan.  Many ex-spouses have inherited significant sums because beneficiary designations have not been updated; so, remember to update life insurance and retirement plan beneficiary designations as well as your estate planning documents.
  • Tell Your Family You've Done Estate Planning- Have a family meeting where you tell your family that you've done estate planning and that they are each provided for and protected; make sure this is true.  Tell each family member that you love them in as many ways as possible.
If you haven't done so already, you and your husband should consider going to a Certified Elder Law Attorney, such as The Elder Law Firm of Evan H. Farr, P.C. to develop an estate plan specifically written for a family like yours. This will not only help keep the peace, but it will give you both much needed peace of mind!  Call us at 703-691-1888 to make an appointment for a free consultation.

Purrs,

Saki (with a bit of help from Alley)

About Saki and Alley: Saki and Alley are nine year old Siamese cats that belong to Jeannie and Evan Farr and live here at the Farr Law Firm.  They are very sweet and smart and love all the attention they get from staff and friendly clients at the firm. We encourage you to visit us and meet these extraordinary Siamese cats!

Now, Saki and Alley have a question for you:
What will happen to your pet(s) in the event of unexpected circumstances, like death or disability? Who can you trust to be responsible for caring for your pet(s), providing food (including salmon treats), daily routines, grooming, medical care, and more. To our mom, we are like her children, so she has a Pet Trust set up that ensures that we will be cared for according to her wishes, should something unthinkable happen to her. At the Law Firm of Evan H. Farr, P.C., you can create a Pet Trust to make certain that your beloved pet receives proper care in the event of your disability or death.



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Do you live near McLean and want to learn more about Long Term Care? Attend our Long Term Care Seminar on Thursday night, 3/28, from 7-8 p.m. at Dolley Madison Library. There is still space. Register here!

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Living Trust Plus Seminar: How to Protect Your Assets from the Expenses of Probate and Long Term Care

Library Seminar:
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7 - 8 p.m.
Dolley Madison Library
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Presented by Evan H. Farr, CELA, principal attorney at The Law Firm of Evan H. Farr, P.C. in Fairfax, VA. http://www.farrlawfirm.com


 
 
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