What should I ask the lawyer for
April 7, 2016 9:04 AM   Subscribe

My parents have had some recent health issues and I've asked them to meet with an estate planning attorney. What should I specifically ask them to discuss with this attorney?

They currently have very simple Willmaker software, self-made wills and have given durable power of attorney and health care decision maker status to each other. I am the administrator of the will after both parents are dead. And in the wills, each is the recipient of all the other's property, but when both are dead, the property is divided evenly between my brother and I.

Recently my dad had a stroke. He's almost fully recovered (thank goodness) but he is at high risk of another event.

My mom, who I thought until a couple weeks ago had dementia, does not. Instead, she has severe memory loss that only effects her ability to recall, with no loss in any other domains. So they call it "mild cognitive impairment, amnesic type". In effect, this means she seems normal and has a normal conversation with you, but if you ask, she has literally not retained a single thing you have said. When my dad was in the hospital, she could not remember why, how long he would be there, where the hospital was, whether the doctor had spoken to her that day, or what she ate for breakfast 5 minutes before.

Finally, my brother has a brain injury and is totally dependent on my parents for income and is applying for SSI.

Sooo, I know the lawyer will recommend various things to them, but I would like to specifically ask them to discuss some stuff with her or him, and see if it is a good idea. Part of the reason for this is becuase my mom presents as pretty much fine if you don't dig and ask if she remembers what you just said. She fakes it very well and gets pretty quiet around strangers, so I'm not sure a lawyer would even notice her impairment.

I don't think my mom is equipped to make medical decisions for my dad, or pay bills or deal with any kind of probate if he were to become unable to or to die. Of course I'd like her to be as involved as impossible, so some kind of shared decision making with both her and me is ideal from my point of view. So I can make sure to take her perspective into account, but not depend on her alone.

I believe my brother would benefit from receiving any inheritance in a special needs trust, so that he could continue to get SSI if approved.

That's all I know... Oh, we live in California.

So, what are the types of trusts, shared decision making mechanisms, and other protections I should ask them to discuss with a lawyer?
posted by latkes to Law & Government (9 answers total) 1 user marked this as a favorite
Is there any reason you can't attend the meeting yourself? Your concerns sound legitimate, but you should be aware that they are almost indistinguishable from the concerns that a grifter would claim to have in trying to scam your parents and siblings out of an inheritance. (I'm not saying you're trying to do that. I'm saying that a lawyer hired to protect your parents' interests would have to consider the possibility, and probably build in suitable protections.)

One thing you could do is hire a lawyer yourself, to ask about the universe of possibilities. Then, once you know what kinds of things can be done, you can work on convincing your parents to do them. I doubt that the lawyers of MeFi can get enough details from your question to give a focused set of options, and there are so many possibilities that it doesn't really make sense to enumerate them all, along with the considerations that might make one suitable and another not.
posted by spacewrench at 9:49 AM on April 7, 2016 [1 favorite]

Are your parents really going to be able to give you a full accounting of what the lawyer says? It sounds like your mother at least won't be able to remember it. Is your father's mental capacity still good?

I agree that you will need to hire a lawyer to sort out what you should do. If your parents aren't willing to give you power of attorney, you may be reaching a point where you'll need to petition for guardianship, which will not be easy. It sounds like it's very possible that your mother at least needs a guardian.
posted by FencingGal at 10:07 AM on April 7, 2016

Please, be at this meeting with them.

You are the most physically and mentally healthy person in the family of four your post describes; accordingly, if an emergency were to befall any of the other three people and further increase their disability or take away one of their sources of support/income, my bet is you would be the family member who steps up to help handle things at that point.

And you're administrating the estate/executing their self made wills, how it's written now.

So you need to be at the meeting.

IANYL!! That aside, for starters:

-ask the lawyer to review their self-made wills for legality, practicality, is it going to do what we actually want it to do under California law, etc.

-if they "have given durable power of attorney and health care decision maker status to each other" and both have impairments for health reasons, ask the lawyer about options to include you as a joint power of attorney (or another third party they trust), so that your amnesiac mother won't end up overwhelmed with complete and total control over your father's medical care if god forbid he has another stroke, for example.

-do they have life insurance? long term care insurance? what other policies does your brother have, in addition to SSDI? let the lawyer know about these as well, as they can affect the greater plan. also, the lawyer will be able to give better advice if you/your parents can give a summary of the financial situation - is there mortgage debt or other debt? is all their income from retirement, or somewhere else as well? how do they handle things for your brother - does he have a trust now, or do they pay all his bills directly, themselves?

-did they actually set up a special needs trust for your brother already? if so, you can ask the lawyer to review the documents establishing it, and make sure its mechanics are both legal and practical. who's the trustee? is it you, one of your parents, or a financial manager? a special needs trust is a great idea for your brother's situation & the lawyer can help you make sure it's designed in a way that will work out under CA law. idk, might be best if you are not the trustee since you're getting the other half of the inheritance.

-ask the lawyer what he thinks about guardianship for your mom if something happens to your dad, ask how this could be set up, ask if it conflicts with you executing your dad's will.

aside from the lawyer appointment, take a look at this for other seemingly more minor things that i, in your shoes, would want to line up:


things like phone passwords, account numbers, insurance policy numbers, locations of important original documents, online banking accounts, contact info for financial managers etc. these are small, but if anything were to suddenly happen to one of your parents, you'd want to have easy access to this information in a central place right?

i think these little things are especially relevant for you because of your mom's memory issues - is she likely to remember a safe deposit box from five or ten years ago? the location of the deed to the house? policy documents with policy numbers from insurance in your dad's name? even a person without any impairment might not remember that stuff! and with her type of impairment, she is at risk for being taken advantage of during a financial emergency, unfortunately, especially if your dad isn't involved.

so anyway tl;dr please go to the meeting. if you can't i would have a conversation with both parents and either record it or take copious notes of what concerns they express, so that your mom can have something to remind her what's going on when they meet with the lawyer.
posted by zdravo at 10:30 AM on April 7, 2016 [5 favorites]

All of the above is good advice.

You'll want to make sure that all the paperwork allows for either death or incapacity, and defines incapacity clearly and consistently. (My parents' trust required different paperwork to demonstrate incapacity than the actual Power of Attorney did, which resulted in some problems and delays.)

Has your mother been diagnosed? Her neurologist should be asked to determine her level of competency, and this should factor into the decision-making now, rather than in the future. If she's not now competent, she should not have your father's POA or MPOA.

Recommend having your father document all his finances, and moving everything possible to autopay (but keep records of what those bills are!). If your mother is incapacitated now, see if you can get yourself put on the accounts as a joint accountholder, so if anything happens to your father you can access the resources to help care for all three of them.
posted by suelac at 12:46 PM on April 7, 2016

At this time YOU are the only family member who is capable of executing any end-of-life decisions. You need to be at this meeting.

It's a hard discussion to have with family, but your Mom's memory issues are such that this has disaster written all over it if you can't guide the discussion.

I think you already know that you should be handling their finances and other issues, especially where your brother is concerned.

I'm not sure conservatorship is indicated....actually, that's what I'm thinking. Stroke and memory issues....someone needs to be in charge.

I'm sorry, it's hard, but at least your parents are meeting with an attorney to get it sorted out BEFORE it becomes a crisis.

Again. Get to that meeting.
posted by Ruthless Bunny at 1:11 PM on April 7, 2016

15 months into probate hell, I wish I'd listened to the long term care facility social worker who cleared the room of witnesses and told me to do illegal things. If I'd done those things what my mom wanted would have happened by now.

Probate law might just be the section most in need of reform. Avoid it any way you can.

Best to you.
posted by Mr. Yuck at 5:22 PM on April 7, 2016

Response by poster: Hi all, OK, I will go to the meeting! I had actually tentatively scheduled a meeting for them with one lawyer and the lawyer pointed out it was important that he talk to them not me, so I was worried that if I attended the meeting it would seem I was trying to influence the outcome! But I will go.

I will ask questions about each of the issues suggested above while at the meeting.

One question I have is if my mom is even competent to sign a will right now. Her diagnosis that she has falls into a rather grey category. But I guess the lawyer will take the lead on this issue?
posted by latkes at 5:46 PM on April 7, 2016 [1 favorite]

Not a lawyer here. But yes, the lawyer will take the lead on this issue. You're right in thinking that this falls into a grey area as far as your mom's competency. And that's probably the number one reason to have this meeting, because that's something you need to get answers on as quickly as possible. As for existing wills, like those made with self-preparing kits/software, this all depends on the state but the lawyer may have the ability to take steps now to make sure those wills are valid when the parents pass on.

Good luck. My parents are gone but I'm watching a messy situation unfold with a grandparent's estate. I told my in-laws last week (because I'm going to have to help my wife unravel whatever mess they leave behind in the future) to please go see an attorney and get wills done. I told them I don't care what's in there, I don't care if they leave everything to their dogs or whatever. Just have something in place so we're not left with a giant mess to clean up. The fact that you're able to help get this in motion is a very good thing.
posted by azpenguin at 11:10 PM on April 7, 2016 [1 favorite]

Definitely seconding asking about long term care insurance.
posted by Exceptional_Hubris at 4:07 AM on April 8, 2016 [1 favorite]

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