The Layperson’s Guide to Revocable Living Trusts, Guardianships, and Conservatorships

Jul6

When our loved ones with dementias and Alzheimer’s Disease reach the part of the journey through these neurological diseases where they are unable to handle their own financial and legal matters, we as caregivers have no option but to step in and act for them and in their best interests.

Here in the United States, there is an incomprehensible aversion to planning for the possibility of having to entrust our lives to someone else and for how we want to die.

It’s as though we have this national collective mentality that if we don’t think about it, then it won’t happen.

The bad news? No matter what, it’s still going to happen.

And someone is going to be left holding the bag – maybe the person we would have designated or maybe someone we don’t want making decisions for us – to decide for us.

If it’s a person we trust, then they have the agony of trying to figure out what’s best and what we would have wanted. This is especially agonizing when dealing with end-of-life issues.

Too many people in this position of not knowing what we want, because we refused to talk about it, prolong our suffering and run up needless bills in the process, simply delaying what would have been the inevitable outcome anyway.

If it’s a person we don’t trust, all bets are off. And it is not going to be pretty.

The time to prepare for both of these inevitables – unless we die early and truly unexpectedly (I can’t help but laugh every time I see an obituary for a really elderly person that says they died unexpectedly: suddenly, perhaps; unexpectedly, no) – is when we have the ability to and can make sure what we want to happen happens.

From the standpoint of appointing someone we trust to handle our financial and legal affairs (most of us do an okay job with medical powers of attorney, but even that gets ignored more than it should), a revocable living trust is probably the best and safest way to go.

The benefits of a revocable living trust are:

The person creating it retains control and can revoke control at any time as long as they are competent;
It can be set up with a small amount of money or a piece of property in the trust and the attorney’s fee (varies by state);
The person creating it designates the person/people they trust to handle their legal/financial affairs;
It eliminates the need for a will;
It cannot be legally contested;
The process of transferring control to the designated trustee in the case of incompetency requires a professional (psychiatric) letter with the diagnosis and evidence of incompetency;
It, with the professional letter declaring incompetency, is the only documentation needed for the designated trustee to handle finances and legal matters.

A revocable living trust is probably the easiest way to ensure what we want both in life if we can’t do it ourselves and in death after we’re gone.

However, it is of supreme importance to choose wisely and be absolutely convinced of the trustworthiness of the person we designate to be our trustee.

The bottom line? If we have any doubts as to whether we can trust someone completely, we do not choose them as our trustee.

It will not end well for us – in fact, it could end gruesomely and tragically – and all our careful planning will have been for nothing, to put it mildly.

But what if, as many Americans do, our loved ones with dementias and Alzheimer’s Disease reach the stage where they are not competent to handle their affairs without any legal documents in place?

There are two options, and by the time this is needed, it’s likely that the petitioner (us for our loved ones or our families for us) will need both of them granted.

Both options are very costly (much more expensive than the cost of powers of attorney and a revocable living trust), often take a long time to be granted, and, in many cases, set off a family war, which not only can delay a decision, but can also create irreparable rifts within the family.

One option is guardianship. Guardianships give the petitioner the legal authority to take physical care of the loved one who is incapacitated.

The process to obtaining guardianship begins with getting a professional letter confirming the person for whom guardianship is sought is incompetent to handle their own affairs.

That letter must be taken to an attorney to have a petition drawn up to submit with the letter to the court. The petitioner is responsible for all the attorney fees (general estimates are in the $2500 to $4000 range if the petition is uncontested) and court costs.

The court will decide – slowly – whether to grant the guardianship and the entire process can take several months at the very least.

The second option is a conservatorship. A conservatorship gives the petitioner the legal authority to handle financial and estate matters for of the loved one who is incapacitated.

A conservatorship has the same legal requirements and process as a guardianship and has the same potential problems as well. That’s why if a petitioner has no other choice but to pursue these options, it’s prudent to do both of them at the same time.

There is an additional requirement for the petitioner who is granted a conservatorship for a loved one who is incapacitated. The petitioner will have to file a detailed annual financial report for the estate to the court for review to ensure that the estate is being managed as the court sees fit.

If the petitions for guardianship and conservatorship are uncontested, they will take a much longer time and much, much more money to obtain than having an attorney draw up a revocable living trust that settles everything.

If the guardianship and conservatorship petitions are contested by other family members, it’s conceivable that the legal fight could outlast the loved one who is incapacitated and the amount of money spent to fund the fight would be outrageously high.

We may have no choice in these matters with our loved ones that we are caregivers for, but I urge each of us to consider taking care of these things for ourselves now for our potential caregivers.

We need to tell our families what we want, carewise, for longterm care and at the end of our lives. We need to choose and discuss with the person we want to ensure that our wishes are carried out. We need to get the legal paperwork done and keep one copy in our home safe or a safety deposit box at the bank and give the other copy to the person we designate to carry out our wishes.

We never know when time and chance are going to happen. Today is the day to prepare for that. Tomorrow may be too late.

The Best-Laid Plans Can Be Wrecked By Family Dynamics

Feb5

This blog has talked a lot about the need for each of us to take immediate action to get our life affairs in order because the reality is that for any of us death could be just one breath away. We just don’t know.

But one thing that has not been discussed is the wild card of family dynamics that can wreck even the most-meticulously-thought-out and best-laid plans that we have made for those we leave behind.

Robin Williams, before his suicide last year, had put all his affairs in order spelling out how his estate was to be dispersed in exact detail. Nevertheless, his family members are now in a bitter contest over his estate.

So this post is not about end-of-life planning, but instead about while-you’re-still-alive fixing.

Each of us is limited to what we personally can fix in our family relationships, but, when it’s all said and done, the real fixes that each of us needs to make are within ourselves.

There has not been a non-dysfunctional family since Adam and Eve, so the first thing we need to do is reset our expectations of being surrounded all our lives by perfect people who do all the right things all the time.

And we should recognize that we wouldn’t survive being surrounded by perfect people because none of us is perfect.

Here’s a reality check for all of us. People screw up. People make mistakes. People fall way short of any semblance of perfection.

I know this will be shocking to read, but guess what? So do you. And so do I.

And the three things within family dynamics that throw monkey wrenches into the best-laid plans for death are related to our imperfections as human beings. They are attitudes and mindsets that only each of us can change within ourselves.

The three monkey wrenches are grudges, greed, and grievousness. They are likely already at work in our families and family dynamics and have been for some time. Death and all that goes with it will just take them to a whole new level that will break everything wide open.

Grudges are things that we believe have been done to us by other people to harm us and hurt us. The attitude and mindset of grudges is that we hold these real or perceived wrongs against those people for as long as we live and we refuse to forgive them.

Grudges are extant in families and in family dynamics. And it shows up in the reactions to how stuff – the material things – get dispersed (or taken without anyone else knowing long before a death).

When family members believe they were cheated out of something they deserved or were entitled to (the truth is we’re owed nothing and we’re entitled to nothing because we didn’t do anything to acquire the stuff that’s in dispute), their complaints are a litany of all the grudges they hold against every other family member (and these can go back almost to birth).

Family members with grudges like to enlist company, so they actively work to divide the family by trying get other family members to agree with them (validate their grudges) and turn on family members who don’t agree.

This will rip the family apart. And, many times, the tear is so extensive that it cannot be put back together at all.

The second monkey wrench is greed. When stuff and material things matter more than anything else on earth, then greed is the attitude and mindset at work. Greed wants everything and wants to share nothing with anyone else.

Greed also is present in families and family dynamics. Look around at the members of your family. Look at yourself.

Which of your family members cares the most about appearances of affluence? Which ones are always on a mission to have the best stuff, the most expensive stuff, the latest stuff, and the most stuff?

Are there competitions under the surface – or right out there in the open – between family members to outdo each other in the stuff department? Are you one of those family members?

I can guarantee it’s somewhere in every family. Wherever it is, greed is the attitude and mindset. And it will take over when it’s time for estates to get settled (many times it starts long before then) and it will also rip the family apart. And that will likely be irreparable.

The last monkey wrench is grievousness. Grievousness is anything that is intentionally done or said to inflict pain and cause grief to other people. It too is an attitude and a mindset.

Grievousness also is replete within families and family dynamics. It seems that there is always at least one family member who is determined to intentionally cause pain and grief to the rest of the family members. They seem to get a perverse satisfaction out of the pain and the grief they cause, often crowing over it and recounting it as a glorious thing again and again for anyone who will listen.

Grievousness is vindictiveness and vengefulness. The attitude and mindset reflects a desire to crush other people for the fun of it and also to bask in the “victory” of how much damage was done.

If we want to change our family dynamics and remove the monkey wrenches of grudges, greed, and grievousness, we have to change our attitudes and mindsets.

Grudges need to be forgiven. Holding something (real or imagined) against a family member for life and not letting it go (it doesn’t mean you forget and you’re not aware if it’s real, but you let go of the hurt and the anger about it) says more about us than it does about the other members of our family.

It shows that we are unforgiving and that if anyone else in our lives does or says something that we perceive as wronging us or hurting us, they will not be forgiven either.

Being a grudge-holder drives people away because nobody wants to be in a position where there is no forgiveness when they screw up, because we all do.

Grudge-holders tend to have a series of short-lived really-hot-then-suddenly-cold relationships as a pattern in their lives. The pattern looks like this: as soon as they develop a grudge against someone, they drop the person as if they never existed, and they move on to someone new, until that person screws up, and on and on.

If we’re grudge-holders, then we need to change. We need to forgive and we need to let our families know – we don’t have to say anything, because our actions will show it – that we’ve forgiven all the things we were holding against them.

Greed needs to be eliminated by putting life into perspective. Stuff is just stuff. It can’t hold you, it can’t love you, it can’t care about you. All it can do is wear out, break down, and eventually end up on a garbage heap.

It’s ironic that in families where there is greed among its members that all the stuff that they’re so desperate to acquire at the risk of everything else eventually ends up in boxes or basements or attics where it is never touched again.

We need to let go of our intense attachments to stuff and work on rebuilding our attachments to the people we love, who in the long run, are our only physical saving graces. When those people are gone, they’re gone, and no amount of stuff will ever take their place or fill the void they’ve left behind.

Grievousness needs to be replaced with gentleness and kindness. Hurting other people intentionally and reveling in the fact that we’ve caused people pain and grief is a reflection of our own mindset and attitude of hate.

This hate transfers all blame, responsibility, and accountability for our own words and actions – and we know those aren’t always perfect or good – onto the people we hurt and gloat about seeing in the grief and pain that follows.

I challenge each of us to look deeply and carefully and honestly at ourselves within the context of our families and our family dynamics and see if we personally have the attitudes and mindsets of grudges, greed, and grievousness.

And if we find any, some, or all of these within ourselves, then I give us the biggest challenge of all: to change them, starting today.

There’s an interesting phenomenon that happens when a person begins to change their attitudes and mindsets. The people with whom that person’s life intersects will start changing too.

Only you and I can decide whether that change will be for better or for worse.

Do You Know And Have You Prepared What You Need To Ensure That You And Your Affairs Will Be Well-Taken Care Of When You Need Help?

Jan7

Every few months, I write a post on the immediate need for everyone – no matter what their age, their health, or their life circumstances – to know and understand the vital information that needs to documented (and executed in terms of legal documents) and communicated to their designee when they are unable, either temporarily or permanently, to take care of their own affairs.

This includes digital access (email accounts, online bank accounts, retail accounts, etc.) documentation as well as legal, medical, and financial documents everyone needs to have in place when we need help or can’t take care of our own affairs in this area.

I am extremely puzzled by the fact those most people put this off and avoid thinking about it or doing it. It’s illogical and it is really cruel to those whose laps it ends up in.

I can’t tell you how many stories I’ve heard about a family member – especially parents of grown children – being incapacitated with life and death in the balance and because nobody ever talked about this contingency and no documents – living wills and/or DNRs – exist, there’s no clear decision-maker and the ability to let go (taking off life support when there’s no chance of recovery) is long, hard, and gut-wrenching on the family.

And the one who didn’t take the time to spell out their wishes suffers terribly and needlessly, not to get better, but essentially just to run up a meaningless huge debt that will decimate their estate and perhaps ruin the financial health of those they leave behind.

None of is guaranteed our next breath, a healthy life with no life-changing accidents and diseases, nor a healthy mind for as long as we live. Things could literally change 180% for any of us and our families and loved ones while we’re reading this sentence. Yet, of all the things it seems that we humans deceive ourselves about, this seems to be the top “It won’t happen to me.”

But the reality is that it will.

If not sooner, then later.

And the most selfish and irresponsible thing that we can do to our families and our loved ones is to not be prepared ourselves and to not ensure that we have designated and prepared the decision-makers we choose in advance.

This is one of the greatest acts of love and one of the biggest blessings we can do for and give to those closest to us and whom we love the most.

All of us need to be preparing in advance for the possibility that something – whether it’s Alzheimer’s Disease, dementias, other life-threatening illnesses, or simply time and chance – could suddenly and dramatically or slowly and insidiously render us incapable of taking care of our own affairs.

With the precipitous rise in dementias overall, which may be in part related to a more toxic planet, more toxic water, and more toxic food, and the burgeoning number of lifestyle-related dementias that are emerging, the odds are not in our favor that every single one of us, in time, will not suffer from some sort of neurological degeneration.

Who is going to help us when this happens?

And even if you or I are the exception to the rule, we’re still going to die. Everybody dies.

You can ignore it, you can deny it, you can live in some fantasy world where you refuse to think about it ever, but it doesn’t change the reality that it will happen to you and me.

I believe most of us assume that death will be quick and instantaneously, but the reality is that, in all likelihood, most of us will probably have a period of decline in which we will need help handling our financial, legal, and medical affairs before we take our last breaths.

And, after we take our last breaths, someone will have to take care of getting us buried and ending our financial, legal, and medical status among the living.

Who would that be for you? Yes, you, the one who is reading this post. Do you know? Does that person know? If that person knows, have you made this as easy as possible for him or her by doing your part and making sure he or she has everything he or she needs to do what needs to be done?

Or, because you don’t want to think about it or talk about, will that person have the burdensome responsibility of trying to figure it out all on his or her own?

We say we don’t want to be burdens to our loved ones. By taking care of this, you and I – we – have taken a big step toward easing the magnitude of that burden that, if we live long enough, will be shouldered by our loved ones.

I did my first will and living will shortly after I turned 21. I review and update, if necessary, both of those when my circumstances change or 12 months have passed. I have a signed and notarized DNR.

I have complete documentation on my digital footprint, as well as other financial, medical, insurance, property, and notification (for death) documentation that I keep updated as well.

I have detailed instructions regarding my funeral service and my burial.

Do you?

If not, why not?

What are you going to do about?

When are you going to do something about it?

What if tomorrow never comes?

If You Needed Help, Does Anyone Have What They Need From You to Step Up to the Plate?

Aug28

I went to a metropolitan senior center as an observer for an Alzheimer’s Association class today that was eye-opening as far as how few of the seniors in the class knew and understood what legal, medical, and financial documents they needed to have in place in the event that they needed help or could not take care of their own affairs in this area.

The questions they asked, which I was able to help answer, reminded me that I can’t overemphasize the explanations of these documents, the reasons why they are needed, and that the time is now for everybody, regardless of your age and health, to have these in place.

It seems to me that the very thing we try most to avoid thinking about, talking about, planning for is the very thing that will eventually happen to us all. And that is death.

Denial is, in my opinion, stronger and more pervasive in this area of life than in any other. “If I don’t think about it, then it isn’t real” seems to be the underlying thinking of this denial. I’m here to tell you that all the denial in the world won’t take away its inevitability of happening.

None of us, except those who chose to usurp God’s will and end their own lives, know how or when we’re going to die.

I believe most of us assume it will be quick and instantaneously, but the reality is that, in all likelihood, most of us will probably have a period of decline in which we will need help handling our financial, legal, and medical affairs before we take our last breaths.

And, after we take our last breaths, someone will have to take care of getting us buried and ending our financial, legal, and medical status among the living.

Or, because you don’t want to think about it or talk about, will that person have the burdensome responsibility of trying to figure it out all on his or her own?

I did my first will and living will shortly after I turned 21. I had just graduated from college, but not before having a very serious car accident (one that I miraculously survived with some significant injuries, but nothing like what I should have suffered) just before I graduated.

I’d never been that close to being face-to-face with death before, but it made me realize that I needed to make sure that my affairs – and they were paltry in those days but even then I had life insurance – were in order for the ones I’d leave behind.

From that point on, I have been meticulous about keeping my will up-to-date, the beneficiaries on my insurance policies up-to-date, and all the information my executor will need to take care of things up-to-date. I added a DNR to my medical wishes about 20 years ago, I got my cemetery plot 15 years ago, and I wrote out my funeral service and burial wishes about 10 years ago.

Additionally, my executor has updated access and account information to everything online and offline to finish up my earthly affairs when I’m gone.

This, in my opinion, is the last act of kindness I can do in this physical life. It is also one of the greatest.

Mama used to worry that something would happen to me (i.e., that I would die before she did) and then about what would happen to her. There were times in our lives together that could have been a possibility, but I always reassured her that I’d be there with her to the end. And I was by the grace of God.

Of my parents, Daddy was a paradox when it came to this subject. On the one hand, he had life insurance that would take care of Mama after his death and he insisted, in the year before his death, that Mama get her own checking and savings accounts and get credit cards in her name only.

On the other hand, there were other areas in which he had great difficulty facing his mortality. I remember Mama suggesting that they start getting rid of clothes and other things they weren’t wearing or using anymore and Daddy’s response: “the girls can take care of that.”

The will that Daddy had in effect, until shortly before his death, was the one that he had drawn up just after he and Mama adopted us. None of the information was pertinent or relevant anymore.

After much and extended (I’m talking a couple of years) discussion between Mama and him, they finally went to a lawyer, about six weeks before he died, to have a current will drawn up.

Mama was just the opposite. Somehow, I think all the deaths of close and beloved relatives in her early years made the inevitability of death more real to her. She, primarily, during our growing up years, talked on a regular basis about what would happen to us if she and Daddy died and how we needed to take care of each other and be good kids so the road without them would be easier for us.

Not long after Daddy died, she and I sat down together (I was now checking in daily and helping her navigate through some of the things that Daddy had done and offering advice and assistance as she needed it) and she told me what she wanted – and didn’t want – as far as end-of-life wishes.

We went to an attorney together and she did a will (which she later changed to a revocable living trust), living will, and all the POA paperwork. I had copies, she had copies, and she put copies in a safety deposit box at the bank.

At that time, I didn’t need or want knowledge or access to her financial accounts, but as time went on, she needed more of my help in dealing with them, so she gave me access to get into the accounts and help her (we always sat down and did this together until she wasn’t able to anymore) keep up with bills and what she had.

By doing this with me, Mama made things much easier for me when the time came that I had to step in because she couldn’t do it.

I can’t thank Mama enough for her foresight with this gift. Instead of having to focus on everything brand new coming at me at once, I could focus on what was most important, and that was Mama: loving her, caring for her, being there for her.

The last couple of months Mama was alive, we’d be sitting close, holding hands, and talking and suddenly she’d say “I don’t want be a burden on you,” with tears rolling down her cheeks. I’d squeeze her hands and pull her closer in a hug, kissing the tears away from her cheeks, saying, “Mama, you’re not a burden to me. I love you unconditionally. I wouldn’t be anywhere else doing anything else but right here doing this with you.”

Mama would relax in my embrace and I would hold her tighter as I said these words because they were true and we both recognized that they were true, but most of all, I recognized how easy Mama had made things for me by equipping me with what I needed to step in easily and take care of the routine things so that I could save my energy, my focus, and my love for taking care of her.

Medical, Financial, and Legal Advocacy and Help: What Happens If You Can’t Advocate For and Help Yourself?

Jun11

All of us need to be preparing in advance for the possibility that something – whether it’s Alzheimer’s Disease, dementias, other life-threatening illnesses, or simply time and chance – could suddenly and dramatically or slowly and insidiously render us incapable of taking care of our own affairs.