As a rule, people associate needing an Estate Plan with dying. They think of it as something they need to do in order to close their affairs and to leave something behind. However, Estate Plans can also be of use to the living.
At present we are handling a conservatorship case where the mom was diagnosed with dementia, severe enough that she is legally unable to make financial or health related decisions for herself. At the same time, she requires round the clock supervision.
In an effort to assist mom, both of her adult children had taken time to stay with her. No small task considering both lived, worked, and had family outside of the country. Yet, because they did live outside of the country, the law would not allow either to accept the role of conservator.
What this means is for one or both of them to be conservator, they would need to move back to the United States permanently and stay with mom full time. A solution they both hoped to avoid.
What was needed was a fiduciary (an unbiased third party who could make decisions on behalf of mom, while communicating the necessity of those decisions to the children). That way mom could be relocated to a full time care facility, or a care provider could be brought into the home, offering a much needed break for the children should one continue to reside there.
In our case, the problem was that although the fiduciary was a perfect viable solution, the children resented having someone who wasn’t family making family decisions. Still, the sad fact remained that unless one or both of the children were willing to move back and live permanently in the United States supervising mom full time, the fiduciary was their new reality.
This story doesn’t currently have an ending, happy or otherwise. It does however speak to the importance of having an Estate Plan, and how beneficial a plan is for the living as well as the dead.
Sadly mom didn’t have an Estate Plan, but if she did have one drafted and signed prior to becoming ill, she could have made the choice as to who would make her financial and health care decisions. She could have chosen either child, or appointed someone else entirely, regardless of their address, even if they did reside outside of the country, and there wouldn’t be need for a fiduciary.
Ever the optimists, we hold faith that this case will resolve itself rightly. More so, we appreciate and praise the efforts of the fiduciary, and we assure the reader that everyone involved in this situation has the mom’s best interest in mind. Still, had there been an Estate Plan, the process could have been relatively painless. Tension and stress could have been minimized and the family could have handled family business without outside involvement.
