NPR News Interview-With Elder Care Planning, Start Early To Avoid Conflicts And Crises
By: Jacki Lyden
Elder Law Associates Newsletter dated July 16, 2014
Click here to listen to the NPR Interview
TRANSCRIPT of the Interview
I'm Jacki Lyden and this is TELL ME MORE from NPR News. Michel Martin is away. They say it takes a village to raise a child, but maybe you just need a few moms and dads in your corner. Each week we check in with a diverse group of parents for their common sense and savvy advice. And today we're turning the table to talk about caring for an elderly parent or a loved one. If you've been there, as I have, you know it can be exhausting, complicated to manage family relationships, finances and, of course, the needs and wants of your loved ones. All of that is even more complicated if you have to seek legal guardianship or custody of your relative. So we wanted to hear more about all this and get some advice. With us now are Howie Krooks. He's an attorney who specializes in elder law and practices in New York and Florida. He's also past president of the National Academy of Elder Law Attorneys. And he's joining us from a member station - Colorado Public Radio in Denver. Hello there.
HOWIE KROOKS: Hello.
LYDEN: Hi, Howie. Thanks for being with us. And Marilyn Geewax is NPR's senior business editor. She became a guardian for an elderly relative. She's in the studio with me. Hello, Marilyn.
MARILYN GEEWAX, BYLINE: Hi, Jacki.
LYDEN: And Fernando Espuelas, one of the regular parenting contributors here. He hosts a radio show on Univision America Network and helped care for his grandmother. Hello there, Fernando.
FERNANDO ESPUELAS: Hi, Jacki.
LYDEN: So welcome, everybody, to the program. And Howie, we're going to begin with you. Many of us see elderly relatives lose a step, become a little forgetful. Of course it doesn't happen overnight. So what are some of the decisive moments or signs in which you might want to think about pursuing legal guardianship - a more extreme, perhaps, move or concern?
KROOKS: Certainly. Guardianship all across the country is supposed to be a last resort remedy. So just because somebody is slower in their decision-making or becoming a little bit more forgetful that, in and of itself, would not necessarily translate into the need for guardianship. The court will always look to alternative arrangements that can be put into place prior to the appointment of a legal guardian. And the reason for that is that when guardianship is pursued and the court appoints a legal guardian, in all states it's going to result in either a restriction on civil rights or in some cases the complete removal of civil rights. And that is an action that the court does not take lightly and will want to make sure that this particular individual is in need of those rights being removed and the appointment of another individual to make decisions on their behalf.
LYDEN: So what does it take to obtain legal guardianship?
KROOKS: It involves a court proceeding. Papers are filed with the court seeking the appointment of a guardian and laying out the foundation for the reasons why a guardian is needed. In some cases there are people who have an issue with wandering and cannot safely get back to their home base. In other cases there are other people who are unable to pay their bills on a regular basis and their decision-making can be flawed. And those are usually justifications for the appointment of a guardian because they are not able to handle the things that you or I might take for granted.
LYDEN: Marilyn, you had guardianship of an elderly aunt. How did that come about?
GEEWAX: I had been close with her over the years. She was a widow and had no one else, really, to depend on. As she started getting older I could see that she was maybe going to need help. She was by herself. But the great thing about our relationship was that it was trusting enough and open enough that she set it up - an appointment with an attorney. And we went through everything while she still had her marbles. You know, we didn't wait until it was too late. I had living will and power of attorney. And most of all I had this relationship with the attorney in Florida. I live in Maryland. She lived there. She liked her life in Florida. She didn't want to be in snow. She didn't want to move North. So she wanted to stay in place, but I had to have some steps to know that I could protect her as things moved forward. Well, after she pretty quickly started going downhill after we signed all the papers. And my goodness, I can't even imagine the cost if we hadn't had that front loaded because the attorney, everybody knew I was her go-to gal. That - everything was clear. I had even brought in a cousin with me when we went to the attorney's office to make sure that there were witnesses in the family, that I, you know, I didn't twist her arm, that we all knew we were on the same page. So what I wanted to urge today to people - just thinking about money and your life is, this a big time of year for family reunions. When you get together, when you're sitting at the picnic table with your family members, try to get this conversation started. You need to front run these problems and not wait until it's a crisis because, believe me, even with everything in place it was a nightmare in a lot of ways. You know, you have to sell her house. Well, you also have to empty out the house and you have to divide up whatever there is there. I mean, it's just one step after another. And if you don't have that situation where you have somebody you trust at a family reunion, a friends reunion, whatever - but have the conversation before you have a crisis, and that'll save you a lot of money because attorneys are not cheap. I mean, the more you can front run this and get yourselves organized in a peaceful setting, not in a contentious, you know, setting or in a hallway of a hospital. But to think it through clearly and lovingly so that you can really get ahead of the problem before you have to feel yourself just - I mean, the stress levels involved in some of this are just off the charts.
LYDEN: Well, and you mentioned trust a number of times and clear lines of organization. We'll talk before we conclude about what happens when there is, perhaps, not that trust amongst family members. But first, Fernando, let's get you in here because I understand as a teenager you helped care for your grandmother when she was sick with terminal cancer. That's quite a responsibility for a 15-year-old. Tell us about your role.
ESPUELAS: Well, we were immigrants at that point - early immigrants into the country, and I was the only family member who spoke English. My grandmother was dying, and my mother was freaked out about it or didn't really want to face that reality. And so I often played the role - all the time played the role of being in front of the doctor, the doctor telling me things and then deciding for the care of my grandmother and changing the story for both my mother and my grandmother. This is not one of the best traditions from a Hispanic culture, but I knew that was expected. And so I just had to swallow it and deal with it.
LYDEN: So that must have been an extraordinary circumstance for you. What were some of the lessons that you took away from that for other members of the family's elder years and maybe even thinking ahead - you're a youthful person - but to your own?
ESPUELAS: Well, I certainly wouldn't wish that experience on anyone. It was one of the hardest things I've ever done in my life, even up to today. But in retrospect, I realize it created in me a tremendous amount of strength, being able to deal with the situation and having to deal with it. I didn't have a choice in it, which in turn gives you courage. I mean, once you face that, certainly as a kid, you can face almost anything.
LYDEN: Yeah, well, if you're just joining us, we're talking about the challenges of caring for an elderly parent or loved one. My guests are journalist Fernando Espuelas, NPR business editor Marilyn Geewax and elder law attorney Howie Krooks. And Howie, I'll come back to you. You're joining us from Colorado. You know, my sister happens to be an elder care attorney in Colorado. What are some of the complications you see? Because I have certainly had her share, without naming any names, a lot of complications -sisters and brothers not agreeing over where mom should live, somebody disappears because someone gets custody. I mean, the stories really could fill novels, some of them.
KROOKS: No doubt about it, Jacki. And I just want to make a point before I respond to that question which is a lot of this can be avoided if advanced directives are put in place. Marilyn mentioned that for her own situation. Advanced directives like powers of attorney, health care proxies and living wills are documents - legal documents that are designed to allow an individual to appoint others to make decisions for them in the event that they should become incapacitated themselves. With these documents in place, in most cases, guardianship can be avoided altogether. In a handful - sorry.
LYDEN: Which would be preferable?
KROOKS: Which would clearly be preferable. It's less time-consuming. It's less intrusive because all of your financial records are opened up to the guardianship court. The guardian still needs permission to do certain things, which means you have to go back to court to get a court order. Things will flow a lot more smoothly if you have these advanced directives in place. And even where you have multiple children, you can designate one or more than one to make decisions collectively. But the point is that this is a self-directed kind of thing. You do have the power to direct how decisions are going to be made for you if and when you should become incapacitated. And where there is a potential for conflict, my view is that you have the inherent responsibility as a parent to take this action so that you can give direction to your family members and say, if I become incapacitated, I've already thought this through, and this is who I want to make decisions for me. And I've had lengthy discussions with that person so that they have a better understanding of what my wishes are and can better carry them out, and thus avoid guardianship. But the conflicted situation that you raised - when you're in a guardianship scenario, it is not a happy place to be in a courtroom with siblings fighting over who should be appointed the guardian. In many cases when a judge sees that the children are fighting, the judge will decide that neither of the children should be appointed as guardian because there's too much in-fighting going on and too much animosity. So they'll appoint an independent person. Well, after living for 80 or 90 years, you're going to have an independent person, a total stranger, come in and start making decisions for you. Yes, it works in some cases. And that's why it's there and can be done, but that's not the ultimate place that I think everybody aspires to be. Much better to talk about it in advance.
LYDEN: Thank you, Howie. We've just got a couple minutes. What other pieces of advice would you have, any of you - Marilyn, in this kind of - I mean, I'm trying to imagine raising it at the picnic table. That would be ideal but boy - pass the cake. Something you want to talk about that could also be hard?
GEEWAX: I think it's - you do almost have to walk yourself into this because it's hard to talk about our own mortality. Nobody likes to think about their mom dying. You don't want to think about your own death. It's very hard. So I really recommend that people, if you can, go online. If you don't have your own access to being online, go to the library. Or there are all kinds of senior groups - AARP has a lot of advice. But if you just start reading about it, thinking about it. There are websites that will tell you about how to set up a will. What's the difference between a do not resuscitate and a living will? They are different. There are all sorts of things where you can start to prepare your mind almost to accept that this is a serious matter. And then, you know, from there maybe join with a church group - a AARP type group or whatever to talk yourselves into it. There's even a website that will send you a monthly reminder to tell you to, you know, don't forget, get your will together. Those kinds of things where, you know, start online, start easy, start with a book and then work your way up to a group.
LYDEN: Thank you. Thanks, Marilyn. A couple of words, Fernando.
ESPUELAS: Yeah, very quickly. My in-laws managed their whole process years ago. Fortunately, my wife has three sisters. They created a whole structure, even down to who was going to get the mirror and it worked really quite well when that moment came.
LYDEN: Well, thank you for sharing that, so much, with us. Fernando Espuelas is a radio host at Univision America Network and a regular contributor here. Howie Krooks is an elder law attorney and he joined us from Colorado Public Radio in Denver. He's also president of the National Academy of Elder Law Attorneys there. And our own Marilyn Geewax. Thank you all very, very much for being here.
GEEWAX: Good to be with you.
ESPUELAS: Thank you.
KROOKS: Thank you.
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