Prevent Family Clashes When Caring for a Family Member

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As an elder law attorney for the past three decades, I have all too commonly witnessed siblings, family members and friends battle for control of the finances and care of their aging parents and loved ones. While the litigation may be for the authority to make day-to-day financial and health care decisions, sadly, the root cause is oftentimes inheritance and monetary control.

It is anticipated that controversies and court fights involving aging parents will rapidly grow in direct proportion to the aging U.S. population. The largest transfer of inter-generational wealth, estimated to be approximately 10 trillion dollars, will be transferred from the World War II generation to the "baby boomers." Unfortunately, the victim in these controversies is often the family unit. I have seen firsthand the bitterness, resentment and destruction of relationships. The effect is best described as a "family divorce," the impact of which may be felt for generations.

Fortunately, there are steps that can minimize the risk of such controversies:

Power of Attorney

Establish a general durable power of attorney. If the general power of attorney is durable, its efficacy will continue in the event the loved one becomes incapacitated. I often recommend to clients that the power of attorney grant the agent broad powers, including broad gifting powers. This is especially important when it becomes necessary for the agent to engage in asset protection and estate planning.

The selection of the individual or individuals whom will be the agent(s) in the power of attorney is a decision of great importance. He or she must be someone highly trusted. If granting broad powers, including unlimited gifting powers, it may be wise to consider appointing two agents who will be required to act jointly.

Health Care Proxy

Execute a health care proxy, wherein a health care agent is selected. The individual selected is permitted by New York law to make all health care decisions when his or her loved one is no longer able to do so. The health care proxy can specify which treatments and end of life medical care can be administered. A copy of the health care proxy should also be provided to the senior's physicians.

Living Will

A living will is a legal document used to communicate a person's wishes regarding life prolonging medical treatments in the event he or she is no longer able to do so. It informs health care providers, family and friends what should or should not be done medically on behalf of their loved ones. While a living will is not statutorily recognized in New York, it is still additional written evidence of one's wish not to be kept alive by extraordinary measures.

Do Not Resuscitate Order

A Do Not Resuscitate (DNR) order can explicitly specify the circumstance wherein an individual does not want to be resuscitated. Seniors (or their health care proxies) can execute a DNR with their physician. I often recommend that the client keep a pocket DNR in his or her wallet and purse, on the refrigerator and to provide copies to appropriate family or friends.

Establishing these essential components of an overall elder law and estate plan can help tremendously to minimize the chances of disputes over an aging loved one's care and assets. Start the discussion early and take action to prevent future conflict.

Anthony J. Enea is managing partner of the firm Enea, Scanlan & Sirignano, LLP with offices in White Plains and Somers, N.Y.

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