Sibling Wars: Power of Attorney (POA)? Or Responsibility?

I frequently get calls that start out like this:

Me <answering phone>: “Hi, this is Doris”

Telephone Legal Consult
Call Me. I answer my own phone.
Initial consultations are free

Caller: “Uh, hi. Is this the lawyer’s office?”

Me: “Yes, how can I help you?”

Caller: Oh, uh…(gets over surprise that lawyer answers her own phone) Can you tell me how much you charge for a PoA?” <Power of Attorney>

Me: “Well sure. What kind of PoA?”

Caller: “Oh, so I can help my mother”

Me: “I see. To do what exactly?”

Caller: “Um, well I need you to write a PoA so I can take care of her. You know, pay her bills – that kind of thing”

Me: Well, you should understand that its your MOTHER that needs the PoA – not you.”

The conversation either ends right there or an appointment gets made.

If the conversation continues, one of the next things that’s going to happen is  a meeting with Mother – to see if she is on board with making this adult child her Agent. Please note: a person is not a “POA”  the person that grants a POA is the “Principal” and the person that receives that power is their “Agent” – an old fashioned term used to be an “Attorney-in-Fact”) I will need to see that Mother is ABLE to name an Agent. That is to say, does she have the mental capacity to understand what she is doing?  That’s a whole ‘nother blog post that I’ll save for another day.

Soon, the person who initially called is likely to get tangled up with sisters and brothers. Or other relations and interested parties.  Mother becomes collateral damage in a Sibling War.

These scenarios play out in a bunch of different ways. Often one or more of the adult children are geographically distant. Sometimes one of the adult children is saddled with the day to day worries and concerns associated with caring for a very frail and failing mother.

Fighting Kids
“Sandbox Issues” carry over into adulthood

Often, the present day stresses and tensions in the family are exacerbated by what I call “sandbox issues.”

As adults, all of us carry the baggage of our childhood relationships with us.  And try as we might to be rational adults, inside of us lives a hurt, anxious, resentful or angry child of about 8 or 9 years old just waiting to replay all that bottled up angst.

“Mom always loved you more.”   “Dad never understood me”  “You got to go to college and I didn’t”   “You were always the blacksheep”  “You’re more like Mom and I’m more like Dad”

Then there is someone I call “New York Sister.” Or Brother. Or cousin, or friend.  We all have one. And they don’t necessarily live in New   York. They live far away. They have important jobs; full lives; kids to take care of; projects to manage.  They do what they can. Call every other week. And once a year, they fly in to visit Mom & Dad and to give caregiver a break.  New York Sister has good intentions.  But her life is, well, different. She does yoga and pilates 4 times a week and she is just certain, 85 year old mom’s arthritis would clear up if Mom would do yoga and pilates with her while she’s there.  She also eats Greek Yogurt and fresh fruit for breakfast every morning. She is appalled that mother – who grew up on a farm, got up with the sun and who has eaten a country breakfast every single day of her life for 85 years – is still having biscuits & sausage gravy or bacon & eggs every day! That caregiver you hired (that Momma loves)? What do you mean she’s not from an agency!? And you’re clearly paying her way too much and wasting mother’s money.

You get the picture. New York Sister, in a short week or 10 days, has turned the entire house on its head. Nothing is more counterproductive disturbing an elder’s routine. And do NOT mess with their meals or mealtimes! That is sacrosanct.

New York Sister flies back to her life in Metropolis and leaves behind the wreckage of a routine out of whack, a caregiver upset, the pill box screwed up, the church social missed and a very confused and upset Momma.  New York Sister doesn’t realize that her visits are not exactly fun for everyone.  She also cannot understand why her advice from afar after such visits is taken with something less than, ahem,  enthusiasm. And can’t understand, why, since she is so sophisticated and hi-powered, why doesn’t she have the Power of Attorney?

Unfortunately, the very people that used to send us to our rooms and sort out our differences are no longer able to do that.  As Mom or Dad begin to fail, the roles begin to reverse; we must take care of them; they cannot get caught up in the disagreements among other family members. They have enough worries and aches and pains as it is.

If  these were the only issues – emotional baggage among siblings – that would be, well, manageable. A little counseling, a hear- to-heart, perhaps some medication?  Maybe and we can all get along and put Mom or Dad’s issues on the front burner and set aside our own to deal with another day.!

Money Problems
Lurking behind every problem…. Money Monster

Unfortunately, the other big issue that always rears its ugly head is money. I call it the money monster.  Mom & Dad’s money. Our money. The cost to care for Mom & Dad and who will pay it?

 

I frankly have little patience for families at war over an inheritance. Typically, I will refer them out to a lawyer I don’t like and let them deal with it.

Worse are the siblings who are worrying about an inheritance while Mom & Dad are still alive and sometimes even quite healthy with much life still ahead of them to live.

I once had two brothers come to me purportedly seeking advice related to their mother’s care. They kept referring to preservation of her “estate.” I finally had to give them the bad news that there was no “estate” until mom died. And she was very much alive. And until she died all there was to deal with was her money and assets – which were hers. I have to be very clear that their concern was not mother’s estate, but mother’s care.  And since mother was not only alive, she was also in full possession of her mental faculties and was quite capable about making decisions about her money (and the disposition of her estate) all on her own.

Adult children frequently do not understand, or are unwilling to accept, that just because an aging parent makes a decision which adult children disagree with, does not make the parent “incompetent” or “incapacitated.”  Even if the decision they disagree with is a foolish or risky decision, that does not mean mom or dad cannot make decisions. We all have the right to make bad decisions!

Clients – especially younger clients – sometimes come to me ready to go to court hoping a court will do for them what they can’t get their parents to do.  I try to ratchet things down a little bit whebever I can.  I explain that going after guardianship/conservatorship  is perhaps not the best solution. Nor is it the cheapest.  Solutions short of litigation include simply have a third party talk with Mom, Dad and/or  perhaps the Warring of Siblings (and other interested parties). Formal mediation sessions might be one avenue. Another is simply trying to communicate with the other parties on behalf of Mom or Dad.

It can be a very dicey challenge for me to deal with such situations. I must be clear about who my client is. Often it is not the person paying me (usually one of the adult children or other relatives).  My client is the frail or elderly parent who is typically caught in the crossfire.  Often people have trouble understanding this concept. An adult child expect me to “take their side” if they are paying the bill.   I try to explain to them that it is much like the insurance company who pays the legal bill to defend an insured party. The lawyer is paid by the insurance company to represent the guy that was in a car accident. Lawyer doesn’t represent insurance company’s interest (necessarily), lawyer represents driver. Same goes for me. In my case, “driver” is Mom or Dad in whose interest I am advocating regardless of who pays the bill.

My job is not to hand over a Power of Attorney to someone who does not understand that what they are getting is not “power” over Mom or Dad. My job is ensure that adult children undertake rather a serious dose of responsibility. Responsibility to look after Mom or Dad’s best interests no matter the cost to son or daughter’s “inheritance.”

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