With the prevalence of both divorce and longevity, later in life marriages and relationships are more and more common. They can be wonderful experiences for the participants and for their families, bringing love, companionship, and new experiences to one’s later years. But they can also bring on legal, financial and caregiving complications that would not be present in a first marriage, especially when one partner becomes ill.
The experience of my client, who I will call Janet (all of the names are changed), is a case in point. Her father, Bob, a retired professor, has lived with Rita, a semi-retired attorney, for the past 15 years. They are in their late 70s and early 80s and, unfortunately, both are beginning to show signs of dementia, Bob more obviously than Rita.
Janet was concerned about both Bob’s care and his finances. It was not at all clear that he was taking his medications as prescribed and his cleanliness left a lot to be desired. Rita didn’t seem to be up to managing Bob’s care and both resented any intrusions by Janet.
The situation was further complicated by the fact that several years ago Bob loaned Rita a substantial sum of money to renovate her home and more recently made her a sizable gift to permit her to pay off her mortgage. While Bob is free to do what he wants with his money, the situation raises questions of capacity and undue influence.
Finally, Janet lives several hours away and has a tense relationship with Rita’s daughter and, especially, with Rita’s son-in-law, both of whom are heavily involved in Rita’s day-to-day life. To heighten Janet’s concerns, she learned that Rita recently had transferred the house, which was security for the loan from Bob, to her daughter.
The combination of all of these factors has made it difficult for Janet to intervene on Bob’s behalf. She wants to stay involved to make sure that Bob gets the care he needs and that no more of his savings get siphoned off. But being aggressive, such as seeking guardianship over Bob, could alienate everyone and disrupt Bob’s living situation.
So what can Janet do now and what could Bob have done in the past to improve the situation? Fortunately, Bob did take some steps when he was legally competent to put Janet in a position to act on his behalf now.
Bob had named Janet as his agent on his health care proxy and durable power of attorney. This has enabled her to monitor his investments and to communicate with his physician. It has also enabled her to use Bob’s savings to take the next step.
Janet hired a geriatric care manager to monitor the situation in Bob and Rita’s home and to make sure that Bob gets to his medical appointments. The care manager has also arranged to hire a home health worker a few hours a day to make sure that Bob bathes, gets at least one square meal a day, and takes his medications as prescribed. This intervention has been an important step in relieving Janet’s anxiety.
However, Janet is aware that the situation will likely deteriorate, meaning greater intervention on her part down the road. She may ultimately have to seek guardianship over Bob in order to move him to a safer living situation if he refuses when the time comes. This would also give her sole control over Bob’s finances, preserving them from any further invasion by Rita.
What else could Bob have done to protect himself and his family? In terms of estate planning, Janet would have greater control if Bob’s savings were held in a revocable trust and he had named Janet as co-trustee. We don’t know whether he would have wanted such involvement by her when he was competent.
Further, if Rita and Bob had sat down with an attorney to determine their financial agreement in terms of living expenses and house renovations, there would be no suspicion that Rita took advantage of Bob – or she may have been prevented from doing so.
In short, blending families complicates finances and legalities, making it more important than ever that the new couple plan ahead for themselves and for their families. The more they can put in writing and the more they tell their families about what they want should they become incapacitated, the more likely they will be to avoid difficulties should they need care.
Harry Margolis founded Margolis & Bloom LLP, a six-lawyer Boston law firm in 1987. He has been a designated “Super Lawyer” since 2005 and is Founder and President of ElderLawAnswers that supports seniors, their families and their attorneys by providing various online tools and resources.