It’s the Law Mitchell A. Karasov
Mitchell A. Karasov, Esq. has offices in Los Angeles, Ventura County and the Coachella Valley. He specializes in elder law with emphasis in long-term-care estate planning, Long Term Care Medi-Cal eligibility, trust administration, probate, conservatorships of person or estate, estate and trust litigation and financial abuse litigation. At the Law Offices of Mitchell A. Karasov they take a holistic approach to each case they handle. It is the firm “where elder law and elder care meet.” For more information click on www.karasovelderlaw.com or call (818) 508-7192.
Legally Proceeding in the Aftermath of a Dementia Diagnosis
Q
My parents created a living trust about 10 years ago. When they started having some health issues, I suggested they change the trust so I could start helping them manage their finances, but they declined feeling everything was under control. Recently, they have come to a point in which they need help and I’m afraid it might be too late to make changes because my mom has been diagnosed with dementia. Some months back, she started making mistakes in her checkbook. She has forgotten to transfer money that resulted in bounced checks and has also misplaced bills. My dad and I have asked her to let me pay the bills, but she insists on continuing to pay them herself. On some level, my mom knows she needs my help, but she cannot let go. My dad and I figured out how to get around some of the issues, but we need access to some of her accounts. We tried to use the trust to put me on her annuity accounts, but the company said she needs to change the document so I can take over now or she needs to sign their form and the representative indicated we need approval from the doctor. Unfortunately, my mom’s internist said he can’t sign a form indicating she would understand enough to change the trust or the financial company’s power of attorney form. The financial advisor recommended I hire a lawyer and file for a conservatorship. My parents’ lawyer told me I need to get another lawyer, because he doesn’t file conservatorships. I talked to another lawyer and found this to be an expensive process that I could well lose. I can’t spend all this money, lose, and still not be able to help my parents. How can I fix this problem?
A
Although you’ve been told that your mom has to sign new documents or your only option is to go to court to get a conservatorship, you do have some interim steps that you could explore. Based on what’s going on with your mom, it sounds like it could be problematic to have her change her trust or sign the financial institution’s power of attorney. Since an internist diagnosed your mom, you really need to get a more accurate assessment of her legal capacity to sign new estate planning documents, which could include modifying a trust and a pour-over will, as well as signing a new power of attorney for finance and advance healthcare directive. As such, your mom would benefit from meeting with a medical team experienced in diagnosing dementia. Not only would this help with securing a more accurate picture of her legal capacity, but it could help to better address how to treat and deal with her illness. I would consult with an elder law attorney before you commence this process. The attorney will review the estate planning documents to determine the necessary scope of the medical team’s assessment. Having said that, I’m not sure it will be necessary to have your mom to create a modified estate plan. In addition, since she’s been resistant to your offer of assistance, she might not sign new documents. The fact is that an elder law attorney may determine that your parents’ estate plan might already provide the proper language to allow you to take the necessary steps to gain the legal authority to start accessing funds and paying their bills. In that case, the medical assessment might be geared toward your mom’s inability to manage finances and healthcare decisions which could trigger your ability to assume the legal responsibility. The attorney could prepare the necessary legal documents including the medical assessment to indicate that you now have the authority to start handling these responsibilities.✦
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