The Sneaky Kid's Guide to Aging Parents

I really like this new article from www.boomertoboomeronline.ca. I always like articles that are clear, down to earth and give sensible advice to people who are desperately looking for some realistic help. In this article, the author gives several ideas for figuring out whether or not your aging parents are coping on their own. They are ideas that you can actually use. In fact, I used a few of them myself in the past.

And don't let the phrase "sneaky kid" worry you. The message endorsed by the article is "I love you, I owe you, please let me do some things for you so I don’t have to keep worrying that you’re okay." How can you argue with that? Click here to read the article.

Can a house be sold when one joint owner has lost capacity?

What happens when a husband and wife own a house jointly and one of them has lost mental and physical capacity? Can the house be sold? I'd like to share this reader's question with all of you because it asks about a very common situation that many of you will recognize.

"My dad was diagnosed with Alzheimer's disease and recently suffered a stroke.  He does not have a POA set up.  My parents have joint tenancy of their house in Ontario.  Is it true that we cannot sell the house to fund his nursing home expenses?"

 

The fact that you're asking whether "it's true" tells me that someone has already advised you that the house can't be sold. I have no idea whether that information came from a lawyer, realtor or just a friend, but I agree with them. The house can't be sold based on today's facts, but this can be fixed.

 

The fact that the house is held in joint tenancy by your father and mother means that the house can't be sold without signatures by both of them. It sounds as if your mother is capable of signing documents and is willing to do so, but she is only one half of the owners.

 

The question is what to do about getting your father's signature. From what you've said, he is not capable of understanding legal documents. This is not surprising given that he has Alzheimer's disease as well as the after-effects of a stroke. He cannot and should not be asked to sign anything. If he isn't capable himself, we have to look at whether anyone has the legal right to sign on his behalf.

 

Many people seem to think that a spouse can automatically sign things on behalf of the other spouse in difficult situations like this, but they are completely wrong.

 

The best solution at this point would be to use a Power of Attorney. If properly drafted, your father's chosen representative could use that document to give your father's consent for him, and to sign for him. However, you've already said that your father didn't set up a Power of Attorney, so that option is out.

 

There is another option. Someone can apply to the court to be appointed as your father's trustee. This would give someone the right to act on behalf of your father, with similar rights and responsibilities as that person would have under a Power of Attorney. Obviously going through this procedure is going to take longer and be more costly than simply using a Power of Attorney but in the absence of your father's planning, it's likely the best option.

 

It's essential that when you or your mother make this application to the court that you ensure that the power to sell real estate is included. It's not automatic in all jurisdictions.

 

If you need help getting started, any lawyer who does estate planning should be able to work with you. If you want to look into doing it yourself, you could always check out my book called Protect Your Elderly Parents: Become Your Parent's Guardian or Trustee.

 

 

 

 

 

 

 

 

 

Mom's showing signs of dementia, should I get power of attorney for her?

All of us whose parents have reached a certain age notice when our parents begin to show the early signs of memory loss or disorientation. It may be distressing or alarming, but no matter how we feel about it, we ask ourselves what we are supposed to do when this happens. A reader recently asked me the following question:
"My mother has me as an executor in her will. She is showing signs of senility. Should I consider getting a power of attorney for my mom now before things get worse? My dad is even older, but not showing signs of senility."

The parents in this family are lucky that they have a child who is alert to changes and willing to offer the help necessary. The fact that this child is the executor is not relevant to the question, except that the executor appointment shows that the parents trust the child to deal with legal matters.

Yes, I believe that these parents should have powers of attorney documents put into place, assuming they are still able to understand and sign them. The type of document needed is often called "enduring" or "continuing", or "power of attorney for property". This type of power of attorney, unlike the regular business power of attorney, is designed to last or continue even though its maker might lose mental capacity after the document is made.

The reader mentions that the father seems not to have any signs of incapacity. I would recommend that both parents prepare documents now and not wait until the father also begins to lose his capacity. I also recommend that the parents consider signing health care directives to put someone in charge of medical and personal decisions should that become necessary.

A question that will have to be addressed is whether the power of attorney document is to come into effect immediately or to come into effect at a future date. The future date is the date that the parent loses mental capacity. Often when a parent is already demonstrating signs of memory loss, the best option is to have the document come into effect right away. In this reader's situation, perhaps the mother's power of attorney should come into effect immediately but the father's document should come into effect in the future if he should need it. This is something that can be decided between the parents and their lawyer at the time the documents are prepared.

A significant issue addressed in this reader's question is that of acting now before things get worse. Typically, seniors with dementia or Alzheimer's disease do deteriorate (remember I'm a lawyer, not a doctor, and I'm speaking only from my personal observations). Therefore, if you wait too long to act, the opportunity to have legal documents prepared may well be lost. A person must have mental capacity to sign legal documents. Capacity doesn't have to be perfect, and most seniors who are in the early stages of deterioration are still capable of signing documents.

Should seniors see a lawyer to have wills or powers of attorney prepared, the lawyer will assess the senior for capacity. An experienced lawyer will know that a person  who is beginning to demonstrate incapacity will have good days and bad days, and will do everything she can to maximize the senior's likelihood of having a good day. For example, the lawyer might meet the senior at the senior's home rather than asking the senior to come downtown, which could be disorienting.

It's clear that the child in this question understands the importance of a power of attorney. It also sounds like he or she is willing to act as the attorney in that document. However, it's essential to remember that whether the document is prepared and the choice of attorney are decisions that belong to the parent. The child can raise the subject and provide practical help like a ride to the lawyer's office, but ultimately it's up to the parents to sign or not sign documents.

The parents might choose someone else to act under the power of attorney, so the reader should be prepared for that.

Despite the fact that time becomes the enemy once incapacity begins to emerge, try not to rush elderly parents into specific decisions. Rushing them often results in nothing but upsetting or frightening them, so be patient.

Laughter good medicine for dementia patients: Study

Growing up in a family with several siblings, I remember dinner time with everyone gathered around the table as an occasion for teasing, "hi-jinx" and laughing at and with each other (and for getting into trouble when my Dad caught us throwing peas at each other, but that's a story for another day). According to this new study, continuing the tradition of having a good laugh on a regular basis into old age would be one way of keeping dementia away.

This is something we can all do with the seniors in our lives. It doesn't have to be expensive. Sure, you can take your favourite uncle out to hear a stand-up comedian, but you can also join your Mom to watch something silly on TV, or just spend some time reminiscing over past funny events.

Click on the link below to read the story from the Edmonton Journal.

Laughter good medicine for dementia patients: Study

Was Pat Robertson right? Divorcing a spouse with dementia

Is it alright to divorce a spouse who has dementia when the dementia has caused the spouse to forget who you are? What do you owe them? What about your own emotional needs? This heart-wrenching argument has two very emotional sides to it, and has recently flared up in the US. Click here to read a blog post by Paula Span, which will also link you to a recent story in the New York Times.

Many of us have a parent, spouse or close friend with dementia, and many of us are their caregivers. This issue won't leave you untouched if you have someone with dementia in your life.

Singer Glen Campbell diagnosed with Alzheimer's disease

I like the approach that Glen Campbell is taking towards the onset of Alzheimer's disease. He is still working because he loves it, but acknowledging the potential for some memory  issues while on stage. He is letting his fans know in advance about these issues so that if he has a problem, the fans won't misinterpret what is happening. Click here to read more from www.today.msnbc.msn.com. Attached photo is also from that site.

Art and Alzheimer's at UVa

Here is an interesting and positive story about how museums are adapting not just to accommodate seniors with Alzheimer's disease, but to actively work to give them positive results. I hadn't ever thought of museums in this way but it seems a wonderful idea. Click here to read the story.

Please pass the gravy

This article by Audrey Miller provides tips and suggestions for being aware of changes in your aging parents that might indicate early signs of dementia. The article talks about using the trip home for Thanksgiving in this way, which obviously isn't applicable to Canadian Thanksgiving, but it's only a month until Christmas. The ideas in this article may obviously be applied to going home for Christmas.

I think Ms. Miller is right on the money with this idea. When you only see your parents a couple of times a year because of geographic distance, it's easier to spot those gradual changes in them. If you do notice signs of deterioration in your parents, remember to handle those findings with tact and compassion. Click here to read the article.

War on Dementia

The New York Times is carrying an article about how South Korea is dealing with its epidemic of dementia. The government's plans are very extensive, which is necessary given the numbers of individuals affected. They are even including training for children as young as 11 years old to understand dementia and help with caregiving. I found the article extremely interesting, as it started me wondering about which, if any, of their measures would work here in Canada. Click here to read the article.

Money problems are an early sign of Alzheimer's disease

A recent article in the New York Times talks about how the ability to understand and deal with finances is one of the first impairments associated with Alzheimer's Disease. I wholeheartedly agree with this finding. My clients tell me that some of the very first things they notice in their aging parents are that the parents forget to pay important bills, misplace bills and paperwork (e.g. insurance policies, receipts, work orders) and sometimes pay a bill multiple times because they've forgotten it's been paid.

When you put those smaller, daily tasks such as bill paying in the context of everything a person needs to do to maintain control over finances, you realize that the problem is probably bigger than you thought. Confusion and/or memory problems make an aging person very vulnerable to unscrupulous people, as well as susceptible to simply making big financial mistakes on their own initiative.

When going through estate planning, you should not just focus on a Will. Of course the Will is essential, but it's not the whole story. People should also have Enduring Powers of Attorney that allow one of the kids, or someone else, to step in and help when the ability to manage money diminishes. Without an Enduring Power of Attorney, a person in need of financial help cannot get that help without a court order that appoints a trustee.

An Enduring (aka Continuing) Power of Attorney is essential as well. Don't neglect putting this very important document into place. Keep in mind that the document is flexible enough to be tailored to an individual's needs and wishes. If at all possible, you should also try to ensure that your aging parents put these into place as well.

To read the New York Times article, click here.

Alzheimer's unlocked

Apparently the news is good - finally - in the fight against Alzheimer's disease, just in time for the explosion of cases expected as the population ages. Click here to read the article.

Winnipeg man with Alzheimer's to stay in remand centre two more weeks

This is certainly a tough situation. The man in question here has Alzheimer's, for which he needs help and a new living arrangement, but he also lashed out at someone, for which he was arrested. I really would not want to be the person to sort out all of the social, legal and economic issues this family is facing right now. Click here to read the story.

Major changes on horizon for Alzheimer's testing

New information - and good news - today about changes that are expected to be made in the way Alzheimer's is diagnosed. It's supposed to be much more accurate, and also to diagnose the disease years before any symptoms manifest. Click here to read the story.

Answering more questions about joint property

I really do try to answer readers' questions as quickly as possible but I'm the first to admit that sometimes it takes me a while to get to them all.

I continue to get tons of questions about joint tenancy of homes, and about tenancy-in-common. I'll answer a few of them briefly here (let me know if you need more expanded answers):

Q: My spouse, who is also the joint tenant of our home, has died. How do I change the title into my name only?
A: Take an original Death Certificate (not Funeral Director's Statement of Death) to the Land Titles Office. You will fill in a document called a Declaration of Surviving Joint Tenant, or variations on that in other provinces. You then hand in the document to the Land Titles Clerk, who will amend the title for you. You do not need probate for this.

Q: Two people own a house as joint tenants. What happens if one dies and the surviving joint tenant has Alzheimer's disease?
A: The surviving joint tenant still gets to own the house, with or without Alzheimer's disease, as that is the legal right given by joint tenancy. The question may really be about the logistics of the paperwork, since a person with advanced dementia is not able to understand and sign legal documents. Who can act for this person? If the person with Alzheimer's disease has an Enduring (Continuing) Power of Attorney, it may be used to deal with the land. If there is no Power of Attorney, it may be necessary for someone to be appointed as a trustee by the court.

Q: What happens if both joint tenants die at the same time and there is no Will?
A: If it is impossible to tell which of the joint tenants died first, the law says that the one who is younger is deemed to have outlived the older one. This means the joint title first transfers to that joint tenant, leaving the land in his or her name only. If there is no Will, all of the assets of that person, including the land that used to be in joint tenancy, will be distributed according to the provincial intestacy laws. In Alberta, that would mean children of the second joint tenant first. If there are no children, then his or her parents. If there are no surviving parents, then siblings. Nothing will go to the family of the older joint tenant who died first. See my earlier post here about survivorship of the younger person.

Q: Does a joint title change to tenancy-in-common if one of the joint owners remarries?
A: Nothing is going to happen automatically if one remarries. The title will stay the same until the joint owners both sign documents to bring about a change. One can't do it on his or her own. Remarriage on its own won't change anything. If this question refers to a house that was the matrimonial home and now the couple is splitting up, I assume that the house will be dealt with in the subsequent property division. In other words, you'll divide everything up and one of you will get the house. As part of that agreement, you'll both sign a Transfer of Land document that transfers the house to one owner only.