Dealing with a loved one with Alzheimer’s or dementia is difficult enough, but the problem becomes even more troublesome when the condition acts as a spark to ignite family conflict. Sibling rivalries, second marriages, denied incompetence, and simple greed are but some of the situations that add fuel to the fire and foster dramatic family feuds. Often the fire grows so great that families become torn in half, spending months – or even years – battling in probate court. Sadly, many families are never able to repair the damage, emotionally or financially.
No one wants to end up in probate court fighting in a public family squabble. What can be done to avoid it? Sometimes nothing. If someone else is determined to steal from, cheat, or improperly care for someone suffering from Alzheimer’s or dementia, you may have no choice but to go to court. Other times, probate court battles can be prevented, or at least minimized. How? Two ways: know when to call an experienced probate litigation attorney and know your legal rights.
The first one is easy. Anytime you suspect that someone is not acting properly towards an elderly loved one in a way that will either jeopardize that persons’ care or well-being, or may result in a loss of assets, then you should call an attorney who regularly represents clients in contested probate matters. Many such attorneys offer a low-cost or even free consultation. For example, the experienced attorneys at The Center for Probate Litigation will provide a free consultation to discuss your specific situation and let you know whether action is required. Too many families regret waiting and doing nothing – when in doubt, call an expert.
The second way to protect your family and often avoid court is to become educated about your legal rights. The following is an overview of the basic concepts that families of a loved one with Alzheimer’s or dementia may face when a family dispute or conflict threatens to surface.
Challenging a Power of Attorney or Patient Advocate Designation
Many people believe that once someone signs a power of attorney, for either health care or financial decisions, or a patient advocate designation, then all control has been surrendered to the person designated to make decisions (called the attorney-in-fact or agent) and the rest of the family has no choice but to step aside. In reality, the appointment of an attorney-in-fact or agent is often just the beginning.
A power of attorney or patient advocate designation is only valid if it was executed in compliance with Michigan law, and the person was legally competent at the time of execution. If a power of attorney or patient advocate was signed by someone who was not competent, then the document can be voided.
Even when dealing with a valid power of attorney or patient advocate designation, the attorney-in-fact has a legal responsibility to act in the best interest of the principal. For health care decisions, this means deciding where to live and whom to provide care, based on what is best for the person in need of care, not what is most convenient for the agents. Often the person appointed to make these decisions want to make these decisions based on what will maximize their inheritance or what is easiest for them. This does not fulfill their responsibility.
For financial decisions, this requires the attorney-in-fact to invest prudently and refrain from self-dealing. Often, a person with Alzheimer’s or dementia requires much more conservative investments than he or she had previously chosen earlier in life. This may require a sale of annuities or securities, and insuring the portfolio is diversified, liquid and protected from extreme market fluctuations.
When the loved one has significant assets, following the advice of a credentialed, knowledgeable and ethical financial planner is essential. But Agents must use common sense too – just because a licensed stock broker or annuity salesmen recommends an investment does not make it suitable for a senior citizen with Alzheimer’s or dementia.
Guardianship & Conservatorship Disputes
What do you do when you discover an invalid power of attorney or patient advocate designation, or that the attorney-in-fact is not acting in the best interests of your loved one with Alzheimer’s or dementia? The only way to make sure that control is taken away from an agent who is not acting appropriately is to initiate guardianship and/or conservatorship proceedings.
Both proceedings are handled in probate court and involve someone asking for a decision maker to be appointed. Guardians make medical, placement and other life decisions, while Conservators make financial decisions. One person can serve in both functions, but courts can appoint different people as well.
Who gets appointed in these roles? Most often, it is a family member or another loved one of the individual in need of protection, or ward. And, the ward’s choice does matter! This is especially true for someone with early stages Alzheimer’s or dementia who still retains some decision-making ability, but requires some assistance. Even an incompetent person’s choice will carry great weight if it was expressed through a power of attorney or patient advocate signed while the person was still competent.
Judges who make this decision often have a difficult time when the family disputes who should act in that role. Sibling rivalries and second marriages present significant challenges. Because probate judges have a great deal of discretion in making decisions, family members vying for appointment must do everything they can to convince the judge that they are the most suitable, and that their opponent is not. This process is not fun for anyone who participates, but sometimes is necessary.
Once the guardian and/or conservator is appointed, those who serve have similar fiduciary obligations as an Attorney-in-Fact. The big difference is that they are monitored by the probate court, and file detailed reports on an annual basis, so that the probate court can make sure that the ward is properly protected. Probate courts often also require bonds to be posted when the protected person has significant assets.
Certainly, no one should choose to initiate a guardianship or conservatorships proceeding unless they have no other good choice. But when diplomacy has failed, or when a loved one’s Alzheimer’s or dementia causes them to be too stubborn to admit that they need help making decisions, it is the only safe choice. With an experienced attorney guiding the family, protective proceedings through probate court helps many people sleep at night knowing their loved one is safe.
Theft and Loss of Assets
Court disputes are not always done to safeguard a person’s well-being. Often they are necessary to help a loved one from losing assets, either through mismanagement caused by their dementia or Alzheimer’s, or theft or exploitation from an unsavory family member or annuity salesman. Knowing when to intervene or not is not always easy.
Many seniors suffering from Alzheimer’s or dementia do not want to admit that they need help with their financial decisions. Often, their children do not want to insult them by asking too many questions. But when you have a loved one diagnosed with dementia or Alzheimer’s, you owe it to them to probe. Make sure their investments are secure and appropriate, and their assets are protected.
In doing so, pay attention to warning signs of exploitation. The National Center on Elder Abuse lists many warning signs of exploitation, including sudden changes in banking practice, unexplained withdrawal of large sums of money, the addition of names on a bank signature card, unauthorized withdrawal of the elder’s funds using an ATM card, abrupt changes in a will or other financial document; substandard care being provided or bills unpaid despite the availability of adequate financial resources, forged signatures, and unexplained transfers of assets, among others.
If you discover any of these warning signs, talk to an elder law attorney with knowledge in financial matters immediately. Often, children or other trusted family members are the ones exploiting or even stealing money from someone suffering from Alzheimer’s or dementia. In other cases, there are greedy financial planners who target vulnerable adults with high-commission, inappropriate investments. Financial exploitation is not always easy to spot. Being on guard and proactive is the best defense.
Challenging Changes to a Joint Asset, Will or Trust
What do you do when you discover financial exploitation in a way that is not as overt as theft? What do you do when your father with Alzheimer’s or dementia has added his second wife’s name to a bank account that was always meant for the family, or your mother changed her will or trust to omit you in favor of your brother or sister?
All of these can be successfully challenged in court under the right circumstances, with the help of an experienced probate litigation attorney, but only if the help is sought before it is too late. Sometimes, it is not too late even after the exploited senior passes away. Will and trust changes, joint assets — including bank accounts and real estate, and even outright gifts can be set aside and undone on the basis of incompetence, undue influence, fraud and other reasons.
Incompetence – The test for competency varies depending on the document challenged, but for every situation, the crucial factor is whether the individual reasonably understood the nature of the document or transaction when it was signed. For someone in the early stages of Alzheimer’s or dementia, this is not a bright line test with an easy answer.
Undue Influence – When a person is compelled to make a decision that he or she would not have made, the decision is often the product of undue influence, which is a basis to set it aside. In fact, the law presumes undue influence has occurred when the beneficiary was acting as the power-of-attorney, or otherwise occupied a position of confidence and trust, before the decision or document was made.
Fraud – Even when competent, vulnerable adults with Alzheimer’s or dementia can be tricked into transferring assets, or changing bank accounts or estate planning documents, based on material statements of fact that are false. When someone relies on a material and false representation, the transaction or document can be set aside as invalid.
Accounts of Convenience – For joint bank accounts in particular, and sometimes other joint assets (sometimes even real estate), a loved one with Alzheimer’s or dementia may add the name of a child or other trusted relative as a convenience to help will bill paying, financial management or as a “poor man’s will” to save costs. If the person did not intend the joint owner to keep the asset on death, but instead only added the joint name as a convenience, then courts can and do order the asset to be turned over to the estate and shared with the other beneficiaries.
The decision whether or not to contest the joint nature of an asset, or a new estate planning document, is not always an easy one, and certainly should not be made lightly. Court battles seeking to set aside documents or transactions can be costly and time-consuming. But sometimes, honoring the true wishes of a loved one with Alzheimer’s or dementia is worth the fight.
Source: Andrew W. Mayoras. Please contact Andrew W. Mayoras for additional information or questions at email@example.com or 1-877-PLAN-758.
You can also visit: www.thecenterforelderlaw.com, www.thecenterforspecialneedsplanning.com, www.thecenterforprobatelitigation.com