Parent has cognitive impairment, caregiver doesn't want POA [Update: parent has passed]

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bismarck23
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Parent has cognitive impairment, caregiver doesn't want POA [Update: parent has passed]

Post by bismarck23 »

Update Feb 6 - My dad passed away this past week, at home, comfortable and not in pain, surrounded by family. I'm very glad I was able to be with him in the end. As I mentioned in this thread, I will be receiving a substantial inheritance and will seek advice on how best to invest it, in another thread once more details are known. For now, I know my POA expired, and I let the brokerage know he passed away so they can start their process, whatever that is. I've never been involved in any death/estate issues before, so I'd like to ask the board for any advice or tips. I'm not the executor of the estate, but the uncle who is has some limitations in this area (described below) and asked me for help. It may be tricky to walk the line between being helpful and pushy, but I figure it's best to come armed with good ideas. What steps do we need to take? How do we find a lawyer to probate the will? etc. Thanks very much for the continued support during a sad and unfamiliar time. Edit: Thanks very much for all the kind words from the group.

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:
  1. 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?
  2. 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?
Update 1/17 - Had a phone call today with the other, non-caretaking uncle (although he does a huge amount for my dad and the rest of the family too) and it did not go well:
  • 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.
Last edited by bismarck23 on Sun Feb 06, 2022 6:07 pm, edited 4 times in total.
delamer
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by delamer »

Is it possible to get a temporary POA that would just be good for, say, 90 days?

You could present the idea to your dad as something that will just be in place until he’s feeling better.

Sorry that your family is going through this.
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Makefile
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by Makefile »

bismarck23 wrote: Sun Jan 16, 2022 7:23 pm 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.
Really you only want the uncle to have signing authority, not be owner of the account, right? Would the bank allow that or do they want to see a full-on POA to allow it?
If the balance is substantial, would adding another owner not lead to needing to file a gift tax return (not necessarily pay a tax)?
Not to mention it overrides any other estate planning including POD, although you said there hasn't been any.
bismarck23 wrote: Sun Jan 16, 2022 7:23 pm [*]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? [/list]
Guardianship/conservatorship--think Britney Spears. Sounds like a painful process involving lawyers/courts
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GerryL
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by GerryL »

Can you discuss with your dad that POA does not mean "giving up"?
Case in point: When I was 21, I established my mom as my POA before I left the country to live in Europe so she could take care of things for me. Granted, I did not have much to take care of, but it was a situation that called for someone else to be able to handle my financial affairs for a while.
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cheese_breath
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by cheese_breath »

bismarck23 wrote: Sun Jan 16, 2022 7:23 pm... 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....
If it's not already too late someone needs to get his POA, medical POA, and HIPAA authority while he is still capable of granting them. If not the uncle, then doesn't this fall to you? The discussion with him might be upsetting, but the alternative would be someone going to court to become his guardian and conservator if he becomes mentally incapacitated.

As much as you like and trust the uncle, I wouldn't recommend any solution the involves him becoming joint owner of Dad's finances.
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J295
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by J295 »

If this were my dad, I would not add a brother as a joint owner. In our state, if the brother were a joint owner and dad passed away then all of the assets in the account would prima facie become the property of the brother. Likewise, should the brother have a claim made against him, the joint account assets may be subject to potential claims of brother’s creditors. Etc. etc.

In our state, if there is no general durable power of attorney in place and dad becomes incapacitated, you’ll need to go through a court proceeding to have a guardian/conservator appointed.

Despite the resistance to a general durable power of attorney, it seems the most reasonable alternative from what I understand of the factual situation.

Also, is there a health-care power of attorney in place?
Luckywon
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by Luckywon »

I'm sorry you are going through this. I see you are in California. I can tell you a little about what to expect if your father is in California, as I was conservator for a family member in California for a few years. In the interest of offering useful advice, I am not going to sugar coat this, and I am sorry I don't have a more optimistic viewpoint to offer.

-If your father is incapacitated, someone needs legal authority to act on his behalf. That can come from either general and medical POA, which can only be executed while he was capacity, or court issued Letters of Conservatorship.

-Conservatorship in California is an exhausting, byzantine process that will rapidly deplete most estates due to legal fees. The conservator will find him/herself struggling to get financial institutions, including health insurance companies, to recognize his/her authority to act. The best way I can describe the situation is that the conservator will be struggling to effect care for the conservatee in a system where all the other players (attorneys, courts, appraisers, bondsmen, banks, insurance companies, any business associates of your father) are all incentivized to make your life difficult, rather than help you. The conservatee's privacy and dignity will be completely stripped as every detail of the conservatee's financial life and living conditions will be disseminated to second degree relatives, as well as available for inspection in the probate court. Due to the very high legal fees, the time it takes to comply with the court's oversight process, and the loss of privacy I strongly recommend your father execute a POA while he has capacity rather than become subject to the conservatorship process.

-Your father should immediately simplify his finances to the extent he can. If he has any business interests those should be liquidated. Out of state assets also should be immediately divested. A conservator or POA trying to manage or divest these will encounter great legal difficulties and generate high legal fees and your father's interest will become worth pennies on the dollar, or even become a net liability. Any mortgages or loans should be paid off immediately. This will simplify things and reduce the size of his estate for the purpose of appraisals and purchasing a bond for the conservator, which will save his estate money. He should consolidate his bank accounts into as few as possible.

These are just a few things I think worthy of immediate mention as some were not clearly explained to me by my attorney. Of course, this is my perspective as a layperson. Your family needs to retain an attorney who handles conservatorships and follow that attorney's advice. Be as diligent as you can in selecting this attorney. The conservator's sanity and your father's well being to a large degree depend on that attorney's competence and integrity.

Feel free to PM with any questions, if you like.
Last edited by Luckywon on Sun Jan 16, 2022 8:36 pm, edited 1 time in total.
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cheese_breath
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by cheese_breath »

Luckywon wrote: Sun Jan 16, 2022 8:25 pm ... Conservatorship in California is an exhausting, byzantine process that will rapidly deplete most estates due to legal fees. The conservator will find him/herself struggling to get financial institutions, including health insurance companies, to recognize his/her authority to act. The conservatee's privacy and dignity will be completely stripped as every detail of the conservatee's financial life and living conditions will be disseminated to second degree relatives, as well as available for inspection in the probate court. The best way I can describe the situation is that the conservator finds himself struggling to effect care for the conservatee in a system where all the other players (attorneys, courts, appraisers, bondsmen, banks, insurance companies, any business associates of your father) are all incentivized to make your life difficult, rather than help you...
+1
I haven't actually been a guardian or conservator, but I attended some classes sponsored by one of the Michigan courts. Trust us, you don't want the court involved in your dad's care.
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Kenkat
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by Kenkat »

Messaging is everything in these types of situations. If you said to your dad that you wanted to have limited access so that when he was undergoing treatment, someone else could pay a bill or write a check, do you really feel he would be opposed to that?
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bismarck23
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

Makefile wrote: Sun Jan 16, 2022 7:38 pm
bismarck23 wrote: Sun Jan 16, 2022 7:23 pm 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.
Really you only want the uncle to have signing authority, not be owner of the account, right? Would the bank allow that or do they want to see a full-on POA to allow it?
If the balance is substantial, would adding another owner not lead to needing to file a gift tax return (not necessarily pay a tax)?
Not to mention it overrides any other estate planning including POD, although you said there hasn't been any.
My dad has a will (signed under dire circumstances during a hospitalization about a year ago - not fun). I have not seen the will, but according to my uncle, the checking account is left to the other uncle who is proposed to take it over. I'm not sure if the account has a TOD, or it's just on the will, which I think would mean it would have to go through probate. I believe the plan is to actually make the other uncle a joint owner. I'd bet there is less than $15,000 in there, so would that mean there would be no gift tax implications? Whether the bank will allow this or what sort of paperwork that would require, I don't know.

Another awkward element of this arrangement is that I'm a 50% beneficiary on my dad's investment accounts, which I have POA for, so transferring any money from there to the checking account creates an uncomfortable conflict of interest. Obviously I'm going to make sure there's enough cash to cover bills, with room to spare, but I have no clear direction from my dad on how much to keep in there that his brother will eventually inherit. This whole thing feels like a mess, and I'd much rather my energies go to just supporting my dad.

PSA: set up your estate plans when you're young and healthy, so they're there if/when you need them. Don't wait until you're extremely sick. Your loved ones won't want their memories of you to be contaminated with worried about how your bills are going to get paid.
Makefile wrote: Sun Jan 16, 2022 7:38 pm
bismarck23 wrote: Sun Jan 16, 2022 7:23 pm [*]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? [/list]
Guardianship/conservatorship--think Britney Spears. Sounds like a painful process involving lawyers/courts
I was worried about this. Would this be a strong argument to "bite the bullet" and do the POA now? For example, if my dad goes into a coma, I don't believe there's anyone now authorized to work on preparing his taxes, and I know he will have a substantial bill due April 15th.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by cheese_breath »

Kenkat wrote: Sun Jan 16, 2022 8:34 pm Messaging is everything in these types of situations. If you said to your dad that you wanted to have limited access so that when he was undergoing treatment, someone else could pay a bill or write a check, do you really feel he would be opposed to that?
If his mental processes continue declining someone will need total access to everything, not limited access. Best to get it while he's still capable of granting it. The documents could be written to only take effect when a medical doctor certifies him mentally incapacitated.
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Kenkat
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by Kenkat »

cheese_breath wrote: Sun Jan 16, 2022 8:39 pm
Kenkat wrote: Sun Jan 16, 2022 8:34 pm Messaging is everything in these types of situations. If you said to your dad that you wanted to have limited access so that when he was undergoing treatment, someone else could pay a bill or write a check, do you really feel he would be opposed to that?
If his mental processes continue declining someone will need total access to everything, not limited access. Best to get it while he's still capable of granting it. The documents could be written to only take effect when a medical doctor certifies him mentally incapacitated.
When I say limited access, I mean that the son would agree not to use the POA except when necessary. It’s full access, only limited by the trust a father puts into his son to look out for his father’s interests.
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cheese_breath
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by cheese_breath »

Kenkat wrote: Sun Jan 16, 2022 8:43 pm
cheese_breath wrote: Sun Jan 16, 2022 8:39 pm
Kenkat wrote: Sun Jan 16, 2022 8:34 pm Messaging is everything in these types of situations. If you said to your dad that you wanted to have limited access so that when he was undergoing treatment, someone else could pay a bill or write a check, do you really feel he would be opposed to that?
If his mental processes continue declining someone will need total access to everything, not limited access. Best to get it while he's still capable of granting it. The documents could be written to only take effect when a medical doctor certifies him mentally incapacitated.
When I say limited access, I mean that the son would agree not to use the POA except when necessary. It’s full access, only limited by the trust a father puts into his son to look out for his father’s interests.
Gotcha :thumbsup
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bismarck23
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

Kenkat wrote: Sun Jan 16, 2022 8:34 pm Messaging is everything in these types of situations. If you said to your dad that you wanted to have limited access so that when he was undergoing treatment, someone else could pay a bill or write a check, do you really feel he would be opposed to that?
I agree messaging is very important. Part of my struggle is that, while I agree it would be hard on my dad, I don't think it would be this emotionally crippling "signing your own death warrant" ritual my care-taking uncle thinks it would be. As has been pointed out, POAs are relatively routine and don't imply the grantor is incapacitated. It was not a huge deal to convince him to let me be a POA on his investments. I'm more worried about the care-taking uncle, who (at least for now) is standing in the way. He's done so much for my dad, thousands of hours of care, appointments, hospitalizations, etc and is trying to protect my dad's emotions at basically any cost. I live out of state, and I'm worried the perception on his part would be I'm criticizing the job he's done from afar, not caring about crushing my dad's spirits for the sake of my own convenience, or even worse, somehow scheming to take control of his finances and get a bigger inheritance, etc. As I mentioned, he has a bias against paperwork/planning, and I think the two have enabled each other on this front, which is why we're in this situation in the first place.

If the alternative is to need to pursue some kind of conservatorship if my dad's cognition continues to decline, that may convince the uncle. I feel like I have to try again, even if it strains the relationship.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

Luckywon wrote: Sun Jan 16, 2022 8:25 pm I'm sorry you are going through this. I see you are in California. I can tell you a little about what to expect if your father is in California, as I was conservator for a family member in California for a few years. In the interest of offering useful advice, I am not going to sugar coat this, and I am sorry I don't have a more optimistic viewpoint to offer.

-If your father is incapacitated, someone needs legal authority to act on his behalf. That can come from either general and medical POA, which can only be executed while he was capacity, or court issued Letters of Conservatorship.

-Conservatorship in California is an exhausting, byzantine process that will rapidly deplete most estates due to legal fees. The conservator will find him/herself struggling to get financial institutions, including health insurance companies, to recognize his/her authority to act. The best way I can describe the situation is that the conservator will be struggling to effect care for the conservatee in a system where all the other players (attorneys, courts, appraisers, bondsmen, banks, insurance companies, any business associates of your father) are all incentivized to make your life difficult, rather than help you. The conservatee's privacy and dignity will be completely stripped as every detail of the conservatee's financial life and living conditions will be disseminated to second degree relatives, as well as available for inspection in the probate court. Due to the very high legal fees, the time it takes to comply with the court's oversight process, and the loss of privacy I strongly recommend your father execute a POA while he has capacity rather than become subject to the conservatorship process.

-Your father should immediately simplify his finances to the extent he can. If he has any business interests those should be liquidated. Out of state assets also should be immediately divested. A conservator or POA trying to manage or divest these will encounter great legal difficulties and generate high legal fees and your father's interest will become worth pennies on the dollar, or even become a net liability. Any mortgages or loans should be paid off immediately. This will simplify things and reduce the size of his estate for the purpose of appraisals and purchasing a bond for the conservator, which will save his estate money. He should consolidate his bank accounts into as few as possible.

These are just a few things I think worthy of immediate mention as some were not clearly explained to me by my attorney. Of course, this is my perspective as a layperson. Your family needs to retain an attorney who handles conservatorships and follow that attorney's advice. Be as diligent as you can in selecting this attorney. The conservator's sanity and your father's well being to a large degree depend on that attorney's competence and integrity.

Feel free to PM with any questions, if you like.
Thanks for your perspective. My dad is in New York; I can assume the rules are at least similar enough there to mean a conservatorship is a path we don't want to go down. If you read my other responses, you can see the geographic separation raises some other interpersonal challenges.
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bismarck23
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

delamer wrote: Sun Jan 16, 2022 7:35 pm Is it possible to get a temporary POA that would just be good for, say, 90 days?

You could present the idea to your dad as something that will just be in place until he’s feeling better.

Sorry that your family is going through this.
I'm not sure if temporary POAs exist. I wish my dad engaged with a local estate planning attorney who I could call and ask these questions to. I may have to hire one in his area myself.

I think the messaging to my dad can be managed. As I wrote about in more detail in another response, the messaging to the care-taking uncle is the steeper mountain to climb.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by Kenkat »

bismarck23 wrote: Sun Jan 16, 2022 9:01 pm
delamer wrote: Sun Jan 16, 2022 7:35 pm Is it possible to get a temporary POA that would just be good for, say, 90 days?

You could present the idea to your dad as something that will just be in place until he’s feeling better.

Sorry that your family is going through this.
I'm not sure if temporary POAs exist. I wish my dad engaged with a local estate planning attorney who I could call and ask these questions to. I may have to hire one in his area myself.

I think the messaging to my dad can be managed. As I wrote about in more detail in another response, the messaging to the care-taking uncle is the steeper mountain to climb.
Yes, it sounds like that is probably the challenge here.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by cheese_breath »

bismarck23 wrote: Sun Jan 16, 2022 9:01 pm
delamer wrote: Sun Jan 16, 2022 7:35 pm Is it possible to get a temporary POA that would just be good for, say, 90 days?

You could present the idea to your dad as something that will just be in place until he’s feeling better.

Sorry that your family is going through this.
I'm not sure if temporary POAs exist. I wish my dad engaged with a local estate planning attorney who I could call and ask these questions to. I may have to hire one in his area myself.

I think the messaging to my dad can be managed. As I wrote about in more detail in another response, the messaging to the care-taking uncle is the steeper mountain to climb.
Would it be possible to convince him that without the necessary POAs in place if dad becomes mentally incapacitated, conservatorship is the only option? And if nobody's willing to be the conservator, the court will appoint one.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by SuzBanyan »

Can you set up something equivalent to a checking account through the brokerage account using your existing POA? While it is counter-intuitive to set up a new account at this time, if this allows you to basically ignore his existing checking account, it might be worthwhile. Use it to pay your Dad’s bills which I assume come in the mail to his uncle-caregiver’s address.

As to taxes, I would assume that much of the information needed to file will also come to your Dad in the mail. If your Dad has an accountant who has done his taxes in the past, it is likely you can use the available information to get the taxes prepared so that the amount due can be paid from your Dad’s investment assets. It is possible, however, that the taxes can’t be filed by someone other than your Dad or his (currently non-existent POA, but the accountant can probably file for extension which gives you until October to actually file the return (after you have already paid everything due by April).
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

SuzBanyan wrote: Sun Jan 16, 2022 9:08 pm Can you set up something equivalent to a checking account through the brokerage account using your existing POA? While it is counter-intuitive to set up a new account at this time, if this allows you to basically ignore his existing checking account, it might be worthwhile. Use it to pay your Dad’s bills which I assume come in the mail to his uncle-caregiver’s address.

As to taxes, I would assume that much of the information needed to file will also come to your Dad in the mail. If your Dad has an accountant who has done his taxes in the past, it is likely you can use the available information to get the taxes prepared so that the amount due can be paid from your Dad’s investment assets. It is possible, however, that the taxes can’t be filed by someone other than your Dad or his (currently non-existent POA, but the accountant can probably file for extension which gives you until October to actually file the return (after you have already paid everything due by April).
His brokerage is at Etrade. I didn’t think they had a cash management account or anything that works like a checking account, but I can call and ask.

I assumed his accountant would not be able to talk to me about his taxes (anymore then I could call up your accountant and get info on your taxes). But, this may not be correct. He’s used the same accountant for years.

Can we file an extension, and make a large payment, without my dads consent and without a POA?
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by ResearchMed »

bismarck23 wrote: Sun Jan 16, 2022 9:01 pm
delamer wrote: Sun Jan 16, 2022 7:35 pm Is it possible to get a temporary POA that would just be good for, say, 90 days?

You could present the idea to your dad as something that will just be in place until he’s feeling better.

Sorry that your family is going through this.
I'm not sure if temporary POAs exist. I wish my dad engaged with a local estate planning attorney who I could call and ask these questions to. I may have to hire one in his area myself.

I think the messaging to my dad can be managed. As I wrote about in more detail in another response, the messaging to the care-taking uncle is the steeper mountain to climb.
You don't really need a "temporary" POA.
A POA can be revoked by the person granting it at any time.
So tell your father that when he is feeling better and whever he's ready to "take over everything again", he can definitely do that. In the meantime, no bills would become overdue, medical decisions would be made the way *he* wants, etc. [You might also emphasize that without the POA, some of the decisions might be made by others, such as a court or appointed guardian/etc., and perhaps not the way he and you would have discussed, etc.]

Note: I'm actually not sure how the process of revoking a POA works in real life, which is something for many of us to consider.
That is, if someone has a document that states "X has a POA for Y's affairs" (in proper legal wording, obviously), then how would someone being presented with that document have any way to know if that POA had been revoked? There's obviously a LOT of trust involved with POAs, no surprise. But a "revocation" presumably could happen when there's a breakdown in trust (not simply because someone doesn't need the POA anymore), so that could complicate things...
But no point in bringing all of *that* up at this point!
I've just wondered myself about how that would all work in real life, should such a situation arise.

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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by cheese_breath »

bismarck23 wrote: Sun Jan 16, 2022 10:03 pm ... Can we file an extension, and make a large payment, without my dads consent and without a POA?
IANAL, but I don't believe impersonating someone on their taxes is legal.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by Katietsu »

The IRS does not care who makes the payment. And if they owe you as opposed to you owing them, they do not care when the return is filed. So, while it would be good to get this all squared away, this is one less item to worry about.

I think the messaging to Dad should be that you need the POA in place just to help him out. A POA does not give you the right to take an action against Dad’s wishes or mean Dad is giving up any control. Use the IRA example as something that could have been more easily dealt with had a POA been in place.

The expense and possible involvement of the court if Dad becomes incapacitated would be the selling point to the uncle. But also let him know that the POA is just a tool in case the uncle’s emotions are part of his concerns about the POA as giving up. Also, let him know that legally it is not extreme simplicity to make an account joint in the way he is suggesting. Instead, it is messy with more potential pitfalls. You could become Dad’s general POA while also naming uncle as POA for the checking account alone just with bank paperwork. This seems like it might cover all bases.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

Katietsu wrote: Sun Jan 16, 2022 10:30 pm The IRS does not care who makes the payment. And if they owe you as opposed to you owing them, they do not care when the return is filed. So, while it would be good to get this all squared away, this is one less item to worry about.

I think the messaging to Dad should be that you need the POA in place just to help him out. A POA does not give you the right to take an action against Dad’s wishes or mean Dad is giving up any control. Use the IRA example as something that could have been more easily dealt with had a POA been in place.

The expense and possible involvement of the court if Dad becomes incapacitated would be the selling point to the uncle. But also let him know that the POA is just a tool in case the uncle’s emotions are part of his concerns about the POA as giving up. Also, let him know that legally it is not extreme simplicity to make an account joint in the way he is suggesting. Instead, it is messy with more potential pitfalls. You could become Dad’s general POA while also naming uncle as POA for the checking account alone just with bank paperwork. This seems like it might cover all bases.
Thanks, this is helpful.

Logistically, let's say my dad's accountant is willing to work with me on the preparation. Would we file a Form 4868 for the estimated taxes due? That form asks for personal identification of the person filing, which presumably we could fill in to be my dad's, but it doesn't ask for a signature, so no problem filling out on his behalf?

If the joint ownership of checking account thing goes through, we should have no problem transferring the money and paying the tax bill. But if it doesn't, conceivably I could transfer the money into my own checking account, and write the check with my signature. Would the IRS raise an eyebrow at that? Would they consider it a double-gift and make us both file gift tax forms? The amount will be over the gift tax limit.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by BarbBrooklyn »

Get the folks in your family a copy of a little book called "5 at 55".

https://www.amazon.com/55-Essential-Leg ... 1610352580

Everyone over the age of 55 needs a POA. Life changes in a second as we get older. It's not "giving up; it's looking ahead and exercising prudence.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by celia »

bismarck23 wrote: Sun Jan 16, 2022 7:23 pm 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.
The bolded part is a misperception. Almost everyone doing estate planning gets a POA drawn up (along with a medical POA, a will, and maybe a trust). Thinking you should only get a POA when you are near death is the same as making a will only when you are near death. Isn't it much better to create these documents when you know you are thinking clearly?

The Power Of Attorney document says WHO you want to handle your AFFAIRS when YOU ARE UNABLE. The "who" should agree to this task before the POA is drawn up. The "affairs" are defined such as paying bills, making investments, buying/selling real estate, paying taxes, etc. "You are unable" can be one or more of things like: being outside the country, being deployed in the military, medically or mentally unable to handle your affairs as indicated by one or two doctor letters, or for no reason at all (such as tired of handling your finances and want someone else to do it).

OP, If you haven't done estate planning yet, why not get a Power of Attorney for yourself? I have one and so do many Bogleheads. It was part of our estate plans that a lawyer helped create for us. You and your dad and care-giver uncle should each get one that conforms to your respective state laws. You don't have to be ready to "give up" to be prepared. Those who don't do this beforehand will have the laws of their state "decide" it for them (ie, the default inheritance, guardianship, and conservators laws of your state will apply).

This is how it should work in a perfect world, but in reality, many custodians won't accept generic POA forms. They want you to fill out their form instead, so their legal department doesn't have to decipher your own documents. (At Vanguard, this form is called "Agent Authorization".)

As far as your care-giver uncle, don't expect him to be POA for your dad. He appears to be already doing more than his share to help your dad.
Last edited by celia on Mon Jan 17, 2022 2:09 pm, edited 1 time in total.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by water2357 »

Best wishes for your father's recovery. One of the absolute best things you can do is to contact an elder care lawye (or estate planning lawyer). Your father needs a POA written up by a lawyer who knows you father's State laws for POAs. Each State has slightly different rules for a POA and if you want one that will work in most circumstances it must be written to conform with State law. It should cover both finances and medical directives. POAs are only used with the consent of the person or when the person becomes incapacitated. A POA can be rewritten at anytime, changed, revoked, etc. Just as with the original POA, have the lawyer make any later changes or prepare a legal document to revoke it.

Everyone should have a POA. No ones knows when a POA will be needed, no matter what their age or health status is. It is a tool, it is used to help the person, it is there for peace of mind, it is the safest way to make sure the person's wishes are followed while they are living (the will only is used on death). So, tell your father and uncle POAs are there for those who plan on living. POAs tell everyone what your father wants. DO NOT DO NOTHING. A guardianship is the worst possible route to follow, instead of your father choosing someone he trusts to handle any issues for him, he will be giving control to the State, giving control to tht State is "giving up". A POA is taking control for oneself.

Any elder lawyer/estate lawyer will also tell you that joint accounts are not the way for a person to have someone else manage their finances, that really gives someone else control, they will actually own half of the account. With a POA, your father owns the account. With a POA, your father has responsibility for his finances and any contracts that are signed as POA are your father's liability, as they should be. If you or your uncle sign any contract instead of signing as POA, you will be liable for all costs. E.g. if your father needs rehab and you sign the contract as yourself, not as his POA, the facility will come after you for payment. You may even preclude your father from getting care paid for that he is rightfully due. You signing as yourself may cause your father to lose his right to government or insurance company paid for care.

Talk to a lawyer for your father's best interest and your best interest. It sounds like your uncle is wealthy, it sounds like your undle does not need financial help. Your priority should be you and your father. You have to assert yourself. Handle your father's wishes above board and in the best legal way. Work with a lawyer, you will be surprised to find how many pitfalls there are to managing finances and care for a relative. It is not an easy job and you need expert advice to do it correctly. You also need to make sure what is done does not interfere with your father's wishes in his will for any future estate. Your uncle is setting you and your father up for disaster and will end up costing your father more money, provide less responsive care, cost you time and tremendous work and leave you in a legal morass. Remember if you have a POA, you act for your father, as your father would want, everything is still your father's. If you do what your uncle wants you are going to muck everything up.

And if absolutely needed, the POA can be written with more than one person as POA, acting individually or jointly or when the primary POA is not available. This has to be spelled out in the agreement very clearly and could make handling things more difficult (e.g. if all POAs must agree) or it could make things easier if you have another POA you truly trust and can work with to share some of the work and as mentioned, there will be a lot of work. Discuss with a lawyer the pros and cons.

Note if your father receives Social Security you need to set up someone as "Representative Payee" to deal with Social Security if your father is not able to do that. For taxes, you file the paper work with the IRS that you are your father's representative, allowing you to sign tax returns for him. Check out the tax rules for his State as well. And if your father has a safe deposit box, he should have someone on the box as a "deputy". The deputy can enter the box only while he is living on his behalf.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by crefwatch »

It strikes me that your OP makes multiple assumptions about how your father could react to the idea of a POA. It's time to ASK HIM. Stop focusing on a response you only imagine.

Another problem, unspoken, is who is going to take care of him for his remaining life. I agree that the brother should not be a co-owner, but he seems to have "earned" an inheritance. Are you reluctant/too far away to take over?

Alas, many providers, particularly banks, resist obeying general POAs, even when they should obey them, and demand their own form. Get started now before your father cannot sign. Stop putting it off.

I guess I'm lucky that as soon as my mother missed a few bill payments, she ASKED me to be her POA.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by andypanda »

"The Power Of Attorney document says WHO you want to handle your AFFAIRS when YOU ARE UNABLE. "

Being unable is not a necessary condition, at least of the POAs I have been given and used. They made me the person's agent. A Durable POA continues when the person is incapacitated.

I recall one example from a legal discussion forum. It is possible to give someone a POA to sell your car (riding mower, boat, whatever) only on Tuesdays when it's raining. They are your agent and you can take it away.

Here are two items from Investopedia:

- The POA is often used when the principal can't be present to sign necessary legal documents for a financial transaction. (For a house closing while you're out of the country, etc.)

- A durable power of attorney remains in effect if the principal becomes ill or disabled and cannot act personally.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by SuzBanyan »

bismarck23 wrote: Mon Jan 17, 2022 2:04 am
Katietsu wrote: Sun Jan 16, 2022 10:30 pm The IRS does not care who makes the payment. And if they owe you as opposed to you owing them, they do not care when the return is filed. So, while it would be good to get this all squared away, this is one less item to worry about.

I think the messaging to Dad should be that you need the POA in place just to help him out. A POA does not give you the right to take an action against Dad’s wishes or mean Dad is giving up any control. Use the IRA example as something that could have been more easily dealt with had a POA been in place.

The expense and possible involvement of the court if Dad becomes incapacitated would be the selling point to the uncle. But also let him know that the POA is just a tool in case the uncle’s emotions are part of his concerns about the POA as giving up. Also, let him know that legally it is not extreme simplicity to make an account joint in the way he is suggesting. Instead, it is messy with more potential pitfalls. You could become Dad’s general POA while also naming uncle as POA for the checking account alone just with bank paperwork. This seems like it might cover all bases.
Thanks, this is helpful.

Logistically, let's say my dad's accountant is willing to work with me on the preparation. Would we file a Form 4868 for the estimated taxes due? That form asks for personal identification of the person filing, which presumably we could fill in to be my dad's, but it doesn't ask for a signature, so no problem filling out on his behalf?

If the joint ownership of checking account thing goes through, we should have no problem transferring the money and paying the tax bill. But if it doesn't, conceivably I could transfer the money into my own checking account, and write the check with my signature. Would the IRS raise an eyebrow at that? Would they consider it a double-gift and make us both file gift tax forms? The amount will be over the gift tax limit.
As Katietsu already noted, the IRS doesn’t care who pays. I would assume that a longtime accountant will be willing to work with you so that you can provide the information needed to get the tax return prepared as soon as you advise him/her that your Dad is hospitalized with the timing for recovery uncertain. There are lots of ways to pay the taxes owed, including with a credit or debit card.

Ask the accountant if there is a specific form of POA that would be helpful to file Dad’s taxes. While it may be covered under a more general durable power of attorney, the IRS form may need additional information not typically in a POA.

The cleanest thing is to pay your Dad’s bills directly with his money. But if this is not possible or too difficult, you can certainly pay them and reimburse yourself with Dad’s money. In either case, keep very good records. There are no gift tax implications unless you use the money for your own benefit.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by mkc »

SuzBanyan wrote: Mon Jan 17, 2022 8:29 am
bismarck23 wrote: Mon Jan 17, 2022 2:04 am
Katietsu wrote: Sun Jan 16, 2022 10:30 pm The IRS does not care who makes the payment. And if they owe you as opposed to you owing them, they do not care when the return is filed. So, while it would be good to get this all squared away, this is one less item to worry about.

If the joint ownership of checking account thing goes through, we should have no problem transferring the money and paying the tax bill. But if it doesn't, conceivably I could transfer the money into my own checking account, and write the check with my signature. Would the IRS raise an eyebrow at that? Would they consider it a double-gift and make us both file gift tax forms? The amount will be over the gift tax limit.

The cleanest thing is to pay your Dad’s bills directly with his money. But if this is not possible or too difficult, you can certainly pay them and reimburse yourself with Dad’s money. In either case, keep very good records. There are no gift tax implications unless you use the money for your own benefit.
Hopefully I've cleaned up the nested quotes properly...

I would caution against using the "pay out of your account, reimburse yourself from Dad's" method if there is a chance Dad may need Medicaid assistance in the future.

In NYS, Medicaid scrutinizes any disbursements over (I think) $2K during the 5 year lookback and you must present acceptable receipts/proof of expense, otherwise it's considered gifting. We ran into this with a family member and a reimbursement of slightly over $2K was considered a gift and thus still part of the assets used to calculate the penalty period.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by dbr »

In practice a POA for a checking account only and some sort of authorization for the brokerage is practical and helpful, if not essential. I think all of you are far beyond the point of not setting these things in place. It is possible there should not be credit cards anymore. One might also need to become a SS designated payee or assume payments will just be electronically deposited in the checking account. A major issue is to be sure taxes, maintenance etc. is being done on the house. In my experience assistance of someone who is marginally able can easily be sabotaged if you don't have access to mail that may contain things that have to be dealt with.

I agree that it is a very good idea to keep financial affairs separated and not engage in "reimbursements" and the like.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by clip651 »

OP - if you can, consider a visit to your dad to discuss these things in person. Then you can take your time with the discussion, talk about it over a few days if necessary, judge what's a good time of day to talk about things, see his reaction in person, etc. And then if possible, get the legal consultation while you are there to get the ball rolling. This assumes your dad is still competent enough to participate in this, I hope that he is. I am sorry about his diagnosis, and hope he responds well to treatment.

best wishes,
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by minesweep »

Makefile wrote: Sun Jan 16, 2022 7:38 pm
bismarck23 wrote: Sun Jan 16, 2022 7:23 pm 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.
Really you only want the uncle to have signing authority, not be owner of the account, right? Would the bank allow that or do they want to see a full-on POA to allow it?
If the balance is substantial, would adding another owner not lead to needing to file a gift tax return (not necessarily pay a tax)?
Not to mention it overrides any other estate planning including POD, although you said there hasn't been any.
bismarck23 wrote: Sun Jan 16, 2022 7:23 pm [*]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? [/list]
Guardianship/conservatorship--think Britney Spears. Sounds like a painful process involving lawyers/courts
"If you do not grant a Power of Attorney while you still have the capacity to do so, a court order is required to give someone the authority to act on your behalf. This is called the Guardianship process. The cost of applying to have a guardian appointed is in the thousands and can take up to 12 months or even longer."

6 Reasons Why You Should Have a Power of Attorney
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by dbr »

Makefile wrote: Sun Jan 16, 2022 7:38 pm

Really you only want the uncle to have signing authority, not be owner of the account, right? Would the bank allow that or do they want to see a full-on POA to allow it?
If the balance is substantial, would adding another owner not lead to needing to file a gift tax return (not necessarily pay a tax)?
Not to mention it overrides any other estate planning including POD, although you said there hasn't been any.



Guardianship/conservatorship--think Britney Spears. Sounds like a painful process involving lawyers/courts
At our bank they use the state DPOA form which allows selection of what business is covered and you specify exactly that checking account and nothing else. The bank had the form and they fill it out with you and the grantor signs it then and there with the bank notary applied. You don't want to be joint owner of assets.

We had a family member who refused to grant a POA and his daughter had to go to court to get custody. This is a process to be avoided if possible. I considered the same thing in another case and our attorney advised that to be absolutely the last desperate step to take.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bltn »

Bismarck 23

If I were in your position, I would visit my dad, and explain to him why it would be good for him and our family for me to have his power of attorney. The assets will still be his. The poa will just allow me to manage them for him.
This should be done while he is still competent, soon.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

Anyone have suggestions how I can find a good attorney in her area who could help with this situation? I'm happy to pay the bill and fortunately I can afford a few thousand dollars, but I would still want the attorney to represent my dad's interests.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by BarbBrooklyn »

If you are looking for some who specializes in elder law, there is this certifying organization;

https://nelf.org/
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

mkc wrote: Mon Jan 17, 2022 9:03 am Hopefully I've cleaned up the nested quotes properly...

I would caution against using the "pay out of your account, reimburse yourself from Dad's" method if there is a chance Dad may need Medicaid assistance in the future.

In NYS, Medicaid scrutinizes any disbursements over (I think) $2K during the 5 year lookback and you must present acceptable receipts/proof of expense, otherwise it's considered gifting. We ran into this with a family member and a reimbursement of slightly over $2K was considered a gift and thus still part of the assets used to calculate the penalty period.
Given his assets (a couple million dollars) and the rate at which they're being spend on medical expenses (low) I'd say the chance of needing medicaid is negligible.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

crefwatch wrote: Mon Jan 17, 2022 6:45 am It strikes me that your OP makes multiple assumptions about how your father could react to the idea of a POA. It's time to ASK HIM. Stop focusing on a response you only imagine.

Another problem, unspoken, is who is going to take care of him for his remaining life. I agree that the brother should not be a co-owner, but he seems to have "earned" an inheritance. Are you reluctant/too far away to take over?

Alas, many providers, particularly banks, resist obeying general POAs, even when they should obey them, and demand their own form. Get started now before your father cannot sign. Stop putting it off.

I guess I'm lucky that as soon as my mother missed a few bill payments, she ASKED me to be her POA.
My opinion is that while signing a POA may not be easy, it's necessary to avoid more emotional pain down the road when new issues emerge, or if he's placed into conservatorship and then later recovers, and is legally unable to act on his own behalf, etc. The caretaker-uncle is making more assumptions I think.

I live on the opposite coast (CA/NY), and have someone in my household recovering from surgery who I need to take care of, and also someone who's immune-compromised. So, given the pandemic, travel for me is not the easiest thing to do right now. But I know it needs to be prioritized, and I can probably travel within 2-3 weeks.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by cchrissyy »

I agree with everybody about the importance of these documents for your dad and really, for all of us. i have had legal paperwork for my own unexpected incapacitation since my mid-30s, along with the rest of my estate planning documents.
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.
Maybe your uncle knows your dad's mind better than you do. Maybe not. But when I read this sentence I wonder if it reveals your uncle's psychology, not your dad's. I think you should visit as soon as you can, and speak to him yourself, offering help with getting the lawyer and with paying the bills, for however long he needs your help. It's not giving up it's just a way you can pitch in from a distance until he is ready to keep track of everything again.

It would be a mistake to put the uncle in this role. He doesn't want it and he is already doing so much.
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bsteiner
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bsteiner »

Luckywon wrote: Sun Jan 16, 2022 8:25 pm ...
Conservatorship in California is an exhausting, byzantine process that will rapidly deplete most estates due to legal fees. ...
I think you're a bit dramatic, but I agree that guardianships (conservatorships in California) are expensive and burdensome, and should be a last resort.

The original poster should try to persuade his/her father to give him a general power of attorney.

While powers of attorney aren't perfect, they generally work well. New York recently updated its power of attorney statute to provide that if a financial institution refuses to honor it, and doesn't have reasonable cause, they may be liable for attorneys' fees. The new statute specifically says that the fact that it isn't on the financial institution's form isn't reasonable cause to reject it. My experience with them in New York, even before this change in the law, has been favorable.

Given the amount involved the original poster should also suggest that his/her father review his Will to make sure he provides for his children in separate trusts for their benefit rather than outright, with (if appropriate) each child controlling his/her trust. There also seems to be some piecemeal planning which could be fixed in the process.

As others have pointed out, joint accounts and TOD designations are likely to cause problems (not limited to the possible problems that others have mentioned).
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celia
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by celia »

bsteiner wrote: Mon Jan 17, 2022 2:35 pm Given the amount involved the original poster should also suggest that his/her father review his Will to make sure he provides for his children in separate trusts for their benefit rather than outright, with (if appropriate) each child controlling his/her trust. There also seems to be some piecemeal planning which could be fixed in the process.
bsteiner,
I think you are mixing up OP's dad and OP's uncle. I read the original post, 3rd paragraph, as primarily referring to the uncle. Dad has investments which OP already controls/monitors (2nd paragraph) while Uncle has the wealth in savings and CDs. We have no idea if this uncle has kids or not or if either of them have a will.

As far as Uncle's savings accounts, I wonder if he is aware of the FDIC limitation on how much each account is covered, should the bank fail. But that is another issue.

So, if OP can help his/her dad do some estate planning, some of that may rub off on the uncle too. Maybe or maybe not. Maybe he can be invited to go along to the lawyer visit, just to listen in. I would expect he would object to paying fees to any lawyer, but it will likely cost him more in the long term, if he DOESN'T do estate planning.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by MathWizard »

I am perfectly able, and currently managing a budget over $3 million/ year, and have sufficient resources to retire today. But my wife and I have set up POAs so that we can manage each other's medical and financial decisions and our two sons have this as well if we are both unable to do so.(One son for medical ,the other for financial).

The issue is that you never know when you may need help, and you want to be able to choose who you trust to act in your best interest .
There is nobody that I would trust more than my wife and kids to handle these things. I know,I chose my wife, and raised my kids.

If you are hesitant about the discussion, just enter it with:
I only want to help while you concentrate on getting well. You have more important things to concern yourself with. I think you have raised me well, and I would never do anything that was not in your best interest.

I will stake my life on that fact that I raised my kids well. If your father is like me, I assume he would believe the same.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by mkc »

bismarck23 wrote: Mon Jan 17, 2022 1:43 pm Anyone have suggestions how I can find a good attorney in her area who could help with this situation? I'm happy to pay the bill and fortunately I can afford a few thousand dollars, but I would still want the attorney to represent my dad's interests.
Since your parent is in NY - any chance it's near Putnam/Westchester county? I can offer a recommendation if it is.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by Luckywon »

bsteiner wrote: Mon Jan 17, 2022 2:35 pm
Luckywon wrote: Sun Jan 16, 2022 8:25 pm ...
Conservatorship in California is an exhausting, byzantine process that will rapidly deplete most estates due to legal fees. ...
I think you're a bit dramatic, but I agree that guardianships (conservatorships in California) are expensive and burdensome, and should be a last resort.
Granted, a bit dramatic, but as one data point, when I acted as a conservator the first year of conservatorship generated $70k in legal fees and costs (this did not include any payment to me as conservator, as I took none). I think they could easily have been more than $100k were it not for my efforts to minimize them.

To your point that guardianships are also burdensome, for the Court Accounting, every one of many hundreds of receipts had to be saved, scanned, categorized, and reconciled with credit card charges, bank accounts. This was just one burden. It is really hard to imagine the process becoming more oppressive but that seems to be where it is heading, as I recently read that California is enacting further controls on conservators in response to the perception that the Brittany Spears case was an abuse of powers of conservatorship.

Just to give a flavor of the shenanigans orchestrated by the probate court that I experienced: An appraiser for the probate court valued the conservatee's partnership in a business at almost 2 million dollars. This was based on an absurd and irrelevant formula. The appraiser billed a handsome fee for his appraisal which, in a blatant conflict of interest, was a percentage of the value of the estate! I was informed by my attorney that appealing the appraisal would cost thousands in legal fees and had no guarantee of success. By the way, eventually I redeemed the conservatee's interest in the business for a fraction of what it was appraised. His business partners knew that I was in no position to spend tens or hundreds of thousands of dollars of the conservatee's funds litigating the matter, and that I didn't have the bandwidth to handle that either as I had more pressing concerns such as trying to orchestrate care for the conservatee.
bsteiner wrote: Mon Jan 17, 2022 2:35 pm While powers of attorney aren't perfect, they generally work well. New York recently updated its power of attorney statute to provide that if a financial institution refuses to honor it, and doesn't have reasonable cause, they may be liable for attorneys' fees. The new statute specifically says that the fact that it isn't on the financial institution's form isn't reasonable cause to reject it. My experience with them in New York, even before this change in the law, has been favorable.
As an aside, it was my impression that having POA rather than Letters of Conservatorship would have made my job as conservator easier. There were several occasions when someone at a financial institution or insurance company I was speaking with was familiar with the former but not the latter. For example, I would call an insurance company to appeal a denial of therapy. I would be told they cannot speak to anyone but the patient. (By the way, HIPAA was very frequently weaponized as a magical word to delay and deny benefits.) I would state I had Letters of Conservatorship. There would be a back and forth about what Letters of Conservatorship were. I would be transferred to a supervisor. The supervisor would state I needed to submit the Letters by mail, and they would be reviewed by the Legal Department. It would take up to two weeks. No, they could not be emailed. No, the fact I had submitted them previously to the insurance company did not mean anything, they were a different Department. I had the impression that if I had medical and general POA's, the process would have been somewhat more streamlined.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bsteiner »

BarbBrooklyn wrote: Mon Jan 17, 2022 1:50 pm If you are looking for some who specializes in elder law ....
It sounds like a trusts and estates lawyer would be a better fit.
Luckywon wrote: Mon Jan 17, 2022 4:22 pm ... It is really hard to imagine the [guardianship (conservatorship in California)] process becoming more oppressive but that seems to be where it is heading, as I recently read that California is enacting further controls on conservators in response to the perception that the Brittany Spears case was an abuse of powers of conservatorship.
...
As an aside, it was my impression that having POA rather than Letters of Conservatorship would have made my job as conservator easier. ...
There's no easy solution to guardianships (conservatorships). A power of attorney will often make a guardianship (conservatorship) unnecessary, unless there's an intra-family dispute in which case the court might appoint an independent guardian (conservator).
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by BarbBrooklyn »

Bsteiner, here's the thing.

Lots of good eldercare attorney firms have social workers on staff who are knowledgable about caregiving issues, good facilities, care agencies and the like.

It sounds like the caregiving brother could sure use some boots on the ground advice/help.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

celia wrote: Mon Jan 17, 2022 3:04 pm
bsteiner wrote: Mon Jan 17, 2022 2:35 pm Given the amount involved the original poster should also suggest that his/her father review his Will to make sure he provides for his children in separate trusts for their benefit rather than outright, with (if appropriate) each child controlling his/her trust. There also seems to be some piecemeal planning which could be fixed in the process.
bsteiner,
I think you are mixing up OP's dad and OP's uncle. I read the original post, 3rd paragraph, as primarily referring to the uncle. Dad has investments which OP already controls/monitors (2nd paragraph) while Uncle has the wealth in savings and CDs. We have no idea if this uncle has kids or not or if either of them have a will.

As far as Uncle's savings accounts, I wonder if he is aware of the FDIC limitation on how much each account is covered, should the bank fail. But that is another issue.

So, if OP can help his/her dad do some estate planning, some of that may rub off on the uncle too. Maybe or maybe not. Maybe he can be invited to go along to the lawyer visit, just to listen in. I would expect he would object to paying fees to any lawyer, but it will likely cost him more in the long term, if he DOESN'T do estate planning.
You're right, and sorry this is confusing. To clarify:

Dad has the majority of assets in brokerage and IRA accounts, which I manage, and which have listed beneficiaries (myself and my sibling) and should pass to us without going through probate. He also has a will, which is relatively recent. I'm certain no more advanced planning, like trusts, has been done to try to avoid probate on any other assets. I'm not sure on NY law but his house would be my biggest concern about probate. I'm not designated as the executor of my dad's estate, the care-taking uncle is, so I won't have to worry about a lot here. But, it would still be way better to have had an attorney put together a complete plan on this. My efforts to get my dad to do that were unsuccessful.

I have even less insight into the uncle's financial picture. It's very hard for me to understand, but I think he's lived more than half his life with enough cash in his checking account to buy literally anything he could possibly want. Any more financial complexity than writing a check is unnecessary at best. By the time he's in his 70's, that view is firmly cemented. I'm confident he wouldn't care about FDIC limits. And I could be wrong, but I don't think he would be interested in any sort of estate planning, maybe beyond a will. If you see my update above, my mere suggestion of setting up a POA in a situation where it's obviously needed raised holy heck. If a planner starts talking about trusts or something, I'm confident he would get up and walk out. That said, he does give a lot to his children, covering all their major purchases (education, houses, cars, weddings, etc.). But at this point, especially after the tension over my dad's situation, I would only offer any financial advice if asked directly.
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Re: Parent has cognitive impairment, caregiver doesn't want POA, what to do?

Post by bismarck23 »

mkc wrote: Mon Jan 17, 2022 3:52 pm
bismarck23 wrote: Mon Jan 17, 2022 1:43 pm Anyone have suggestions how I can find a good attorney in her area who could help with this situation? I'm happy to pay the bill and fortunately I can afford a few thousand dollars, but I would still want the attorney to represent my dad's interests.
Since your parent is in NY - any chance it's near Putnam/Westchester county? I can offer a recommendation if it is.
Unfortunately no, but thank you. And per above update, it may not matter.
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