Original post:
Background: My dad, a wonderful person in his late 60's, has been battling cancer for a long time. At the end of 2021 we found the cancer had spread to his brain, and he immediately started brain radiation therapy, an awful "treatment" with devastating side effects. The treatment just ended, and the last few days he has had severe cognitive impairment. In addition to physical impairments, he's not able to text and has trouble following a conversation in person. Our whole family is beyond distraught. We are hoping his cognition recovers but it's not clear that it will.
I've managed my dad's investments for the last few years, even setting up a POA for me with his brokerage (not a general POA) so I can call and ask questions, etc. having nothing in particular to do with his health situation. That is the majority of his assets, but I don't have access into the other areas of his finances (eg. checking account, credit cards, taxes/accountant). I thought his primary caregiver, his brother, was a general POA for him, but I recently found out that's not the case when his brother asked me today if my dad had enough in his checking account to cover a routine credit card bill. I said I didn't know, and strongly suggested that we set up either him, myself, or one of my dad's other siblings as a POA so there are no obstacles to paying bills, preparing taxes, etc. His response was "no way", it would be way too hard on my dad emotionally to suggest such a thing, as it would be perceived as giving up hope.
I should add my dad's brother has done a phenomenal job helping him through years of treatments, driving to appointments, managing his care, accompanying him during various hospitalizations, sleeping in waiting room chairs, etc. I am eternally grateful for all he's done. But I can't help but disagree that my dad doesn't need a POA right now. Also, I have known for some time that he (my uncle) and I have very different philosophies on managing money. His wife has had a multi-million dollar per year income (!) from a business she owns for decades, and he lives a modest lifestyle far below his means, and has an extreme bias toward financial simplicity. For example, he doesn't invest in anything other than savings accounts and CD's, and hasn't set up any estate plans for himself, despite being in his 70's and probably having assets over the estate tax threshold. He looks down any sort investments, special accounts, transfers, planning, paperwork etc as unnecessary scheming and manipulation, complex and risky at best, exploitative and dishonest at worst. My opinion has been that if that's how he wants to live his own life, that's fine, but he shouldn't project those values onto others, who may not be able to afford to pay the same opportunity costs. As my dad's health has gotten worse, I've anticipated friction in this area, and this may be the start. While I hope my dad recovers, if he doesn't, I still want to maintain a good relationship with my uncle and the rest of the family, so I have an interest in preserving that relationship, though perhaps not at any cost.
This is actually the second instance where a POA would have been helpful. In December some paperwork for a routine IRA rollover got missed while my dad was on the hospital, and it took hours of work and caused lots of stress for us to get another copy and get him to sign it. There was understandably resistance to bringing my dad anything to sign, but if someone had a POA we could have signed for him and avoided that stressor. Between COVID and two other family members who are having health issues, the caregivers in the family are overworked and overstressed, and I think a POA would make it easier for everyone.
On the other hand, my uncle may not be wrong about the impact to my dad. He's spent more time with him over the last number of years than anyone else (I live out of state). Last year, when the seriousness of my dad's condition became apparent, I suggested several times, almost pleaded, for him to go to an estate planning attorney. He wouldn't do it, said it was too hard, preferred to get my help instead. This put me in an awkward position as I am not an estate planning expert, and also a 50% beneficiary on most of his assets (my one other sibling being the other half), but there was nothing more I could do.
Rather than the POA, my uncle suggests we set up another uncle as a joint owner on my dad's checking account, to give someone else access. That will solve the short term problem, but my issues are that (a) it's not clear to me that this retitling will be any less hard on my dad emotionally than a POA, and (b) this will only cover one account; the next issue will require more forms for my dad to sign which will bring additional stress and heartache for all involved.
Questions:
- With the goals of minimizing the emotional impact to my dad, but also making sure his finances still get the attention they need, and also reducing stress on his caregivers as much as practical, are there any other options here we are missing?
- If my dad's cognition declines to the point where he obviously can't make decisions for himself, what is the process for setting up someone who can manage his finances without his consent?
- Most concerning is that my dad's condition has deteriorated. He was too weak to move at all under his own power, and had to be fireman-carried. Both uncles are convinced his rapid decline will continue; as far as I know, this is only their opinion and not his doctor's, although sadly they may be right. Discussions have already begun about hospice-like care.
- Both uncles are digging in their heels against trying to get a POA (or conservator/guardian, if it comes to that) set up, and made it clear they would resist efforts by anyone to do either. From what I can tell, they think (a) he doesn't want anyone to have a POA, because if he did he would have set one up himself, (b) they're sure it would be emotionally traumatic to bring it up, (c) they think it's likely he won't live long enough for it to matter, and (d) after pushing a healthy amount of cash into his checking account, they do not anticipate any need for a POA.
- The plan to set up my dad's checking account as joint has been abandoned, again because they think he doesn't have enough time left.
- While both uncles are smart and educated people and seem to understand the value of a POA intellectually (that it helps others care for him, doesn't take away any of his rights, is revocable, etc aren't in dispute), there is a powerful emotional reaction against the idea by both, who see it as a legal machination that would somehow do great harm. I can't explain the apparent contradiction.
- Unfortunately, there is some interpersonal tension too, of the flavor "how could you think about money at a time like this." I won't go into details per forum policy, but I thought any responders should be aware in case it affects any recommendations.
I really don't want to initiate some kind unilateral action that would make a bad situation worse. I disagree that this is the right plan, and I disagree it would be need to be emotionally harmful to my dad (I found out he already gave his brother many of his account passwords, POA isn't that different and really should be included in that). I would guess there's some enabling for a lack of planning going in both directions. But, there's a decent chance that they're right, and this won't matter. If there are issues that emerge where a POA would be needed and is not there, the uncles will face the brunt of the hassle.
My only other question is, let's say my dad does end up in a prolonged (several months may be "prolonged" enough in this context) period of incapacity, without a POA. How does a conservatorship get initiated? His two brothers obviously wouldn't. Would it be up to someone like me, or can/would a doctor or anyone else initiate something if they see he is incapacitated and has no legal representative? Or, would it just become a practical necessity when the IRS levies (or whatever) pile up too high?
Update 1/22 - I was able to travel and see my dad, and am very glad I did. In the couple days I've been here, he's gotten physically weaker but has been relatively stable cognitively. He will go through part-day periods where he's perked up and able to participate in conversations, and has other periods where he's more confused and quiet. We've even had a few laughs. Today he smiled and said he's so glad I came, and that meant the world. His doctor thinks he has somewhere between a few days and a couple weeks left. Our focus is making that time as pleasant and painless as possible, and have tried to line up the right care and medication to make that possible. So far he's not in pain and we're trying to keep it that way.
One of my dad's friend is an attorney, and that friend came to visit today. His specialty is personal injury, so not directly helpful, but he's connected to the legal community in this area and offered help finding the right attorney should we need any legal support. Also, relationships with both uncles have been great and seem undamaged by any recent disagreements. I think we recognize we are all working toward a common goal and that is the focus of everyone.