I remember when I was little trying to figure out a gift for my nana at Christmas. My mother used to to tell me that my grandmother didn’t want more stuff, but rather something from our heart.  A picture, a sleepover (where she let me cheat at go-fish and eat chocolate chips) or some help around the yard.

Now that my mother is a nana and my siblings and I are getting older we concentrate on not giving more “stuff” at Christmas.  We give gifts from the heart that don’t need dusting and won’t go out with the next batch of de-cluttering.

Here are some of the things we like to exchange with each other (the small children still get lots of sparkly, noisy fun stuff):

• Tasty local food items, like Nella Pasta,
• Knitted or sewn hats, scarves or reusable bags for groceries,
• Five Wishes Living Wills, yes, I actually put these in people’s stockings one year…
• Wine, or a favorite liquor,
• Gift certificates so people can pick out things they’ve been wishing for,
• Moleskine notebooks, everyone needs one of these, don’t they?
• Pre-made meals. One year I made little frozen pizzas for everyone. They were a big hit. Stacey Mafera of Errands, Etc. makes and delivers meals locally.
• A gift certificate for an errand service, like Errands, Etc. or Admins and Errands.
• A donation to a charity about a cause they believe in, or to support a part of the world they love to travel to.
• Cleaning out their car, gutters or basement. (Get their permission first! Not everyone can so easily part with their things.)

What can you give this holiday season that is from the heart, doesn’t collect dust and will be treasured all year long?

Photo source: author’s personal photo.

(Note: I repost this list every year, and every year I find something to add to it. Share your ideas below.)

I assure them that they and their families are not the only ones going through this, and then we dive in an try to tackle the issue or get them to the resources they need.

If you are the child of an aging parent going through any of these situations or feelings, you can know that you are not alone:

• You are the only sibling bearing the burden of caring for aging parents while the other siblings do little or nothing (except maybe call and criticize your decisions),
• You are the far-away sibling who feels left out of the care-taking of an aging parent and have concerns about the care-giving sibling,
• You are upset because your parents didn’t name you first in their health care proxy, durable power of attorney or other documents,
• You are upset because your parents named you first on all their estate documents,
• You are upset because your parents gave one of your siblings money throughout their life and didn’t “even it out” in the Will,
• You are upset because your parents helped you financially throughout their life and then “evened it out” in the Will,
• You think that your parents’ house should be neater, bigger, smaller, closer to you, farther away from you, or other than is,
• You feel like you are having the same issues with your siblings you were having when you were 5 years old.

Likewise if you are the aging parent of grown children you maybe see some of your situation here:

• You feel like your children are trying to move you here or there in order to make their life easier,
• Your children appear at your door to “clean” your house and throw away your things without asking your permission,
• Your children seem to have forgotten that you are a capable adult, and still the parent,
• Your children aren’t getting along and it’s breaking your heart,
• You don’t trust your children enough to appoint them in your documents to help you,
• You helped one child financially through out their life and want to “even it out” in the Will but are worried you’ll hurt them,
• You helped one child financially through out their life and don’t want to “even it out” in the Will, but are afraid your other children will be angry,
• You feeling guilty trying to decide which child to name first as your health care proxy, executor or agent in your power of attorney,
• You feel like you are having the same issues with your children you had when they were 5 years old.

Sometimes when I’m having a particularly hard time with things, I think “people had these same feelings and emotions and situations 300 years ago, and somehow humanity has survived.”  Whatever it is you feel as your or your parents age, know that you are not alone.

There are a few issues that impact the elderly more than your average driver. For example, there is now a “lifetime look-back” for drunk driving penalties.  This means that if your first offense was in 1948 and you receive another in 2011, it’s technically a second offense.  Or if you had an offense in the 50’s, one in the 60’s and one in the 80’s, if you get arrested now it’s your fourth offense.

This particularly applies to those who refuse to take the Breath Test, as there is also a “lifetime look-back” for that as well. If you are on your second offense (even 40 years later) and you refuse to take the Breath Test, you automatically lose your license for three years. If you have 3 previous convictions, you lose your license for life.

Another issue is that if you are taking medication, and the police and/or Assistant District Attorney can prove that it may impact your sobriety when mixed with alcohol, they can prosecute you even if you are below the legal limit for alcohol.  They can also use it at trial to argue that you were even more impaired because you take medication.

The third thing that often applies to older driver is the new “immediate threat revocation”. This means that if a police officer thinks you are driving dangerously (even if you aren’t intoxicated) they can file a report with the RMV to have your license revoked for an unlimited period of time.

Other Consequences

Many times with an elderly couple, only one of the spouses drives.  This may be due to health issues, eyesight, comfort with driving, early dementia or medication use.  If the driving spouse is arrested for an OUI, suddenly the family has no way to get to doctor’s appointments, friend’s houses, the grocery store, or their usual activities.  This can cause a downward spiral of loneliness, isolation and poor health due to missing doctor’s appointments or not being able to pick up medication.  While there maybe be alternative transportation available, it may not always be on your schedule.

Still Want to Drink?

If you drink alcohol, tell your doctor how much you drink. If your medications interact poorly with alcohol, ask your doctor if there are alternatives.

Do not drive if you’ve been drinking alcohol. Pick a designated driver (a person who doesn’t drink) and buy their dinner. Take turns being the designated driver.  Hire a taxi to take you to and from the restaurant.  Hire your teenage grandchildren to take you to and from the restaurant. Make whatever arrangements you need to make so that you aren’t driving home after a few drinks.

Make sure you have a health care proxy, power of attorney and living will in place. If you end up in an accident and in the hospital or jail, you’ll need someone who can make health care decisions for you and manage your finances until you are back home and well.

Thank you to my colleague Jessica Foley, who represents people who have been arrested and accused of crimes, for some of the information in this post.  You can find her at www.jessicafoleylaw.com.

It’s almost winter, which means colder days, preparing for snow and an increased risk of colds and other illnesses.  While most of us can recover after a couple days of rest, common illnesses can take a toll on the elderly and infirm.  Illnesses can spread rapidly throughout a patient population even in the best and cleanest of facilities.  Take some precautions if you are visiting someone in the hospital or nursing home (which I do frequently):

• Do not visit if you are sick. Do not bring small children to visit if they are sick.
• Wash your hands before going for the visit.
• Use the hand sanitizer at the check-in desk on your way in to prevent carrying germs in, and on your way out to prevent carrying germs out of the facility.
• If you find yourself having to cough, use the crook of your elbow to cover your mouth, not your hand.
• If you sneeze, use a tissue and wash your hands.
• Wash your hands again when you get back home. (Do you see a theme here?)
• Follow the instructions of the facility if they are having an outbreak of an illness and request that people don’t visit.

A few minutes of prevention will go a long way towards protecting you, your loved ones, and the other patients in the facility from the risk of illness.

If you have concerns about your elderly parent’s driving, you aren’t alone if you decide to address it with them. AARP has a “We Need to Talk” seminar in some states that will help you bring up the topic, or you can report the concern directly to the RMV using their procedure.

If you do decide to bring it up, be sure you’ve investigated alternative forms of transportation such as the MBTA, the RIDE (MBTA services for the disabled), local taxis, Senior Center Shuttles or other services. Having something to replace the lost freedom associated with driving can make a parent more receptive to giving up the keys.

New research shows that one of the first signs of impending dementia is an inability to understand money and credit, contracts and agreements. It is not just families who are affected — financial advisers and lawyers say they are finding themselves in a bind when their clients’ minds seem to be slipping….All too often, though, no one protects people who are losing their capacity to execute documents and their judgment about finances. Their stories of decisions gone awry tend to end badly.

The article goes on to talk about the difficulty financial firms have in determining if someone is still able to handle their finances and the problems faced by spouses who didn’t know their loved one was declining and losing control of money.  It’s important for each spouse to know about money and accounts, even if that information isn’t shared with the children. For people without a spouse, make sure someone – friend, trust advisor, or attorney, knows where the account information is located.

***

There was another New York Times article on hospice care for patients with dementia.

Medicare regulations require a physician to certify that a patient entering hospice is likely to die of his or her disease within six months. Doctors are more likely to do so when the disease is cancer or heart failure, which have more predictable trajectories.

That’s the major reason that dementia patients — who can benefit from the better pain control, fewer hospitalizations (so often associated with aggressive treatments that confer no measurable benefit) and greater family satisfaction that hospice has been shown to provide — are under-enrolled in hospice programs.

The article talks about the difficulty in certifying that a patient has a lifespan of less than 6 months, a requirement of most hospice programs, and then goes on to say:

Dr. Mitchell’s suggestion is to scrap the whole certification system for dementia patients, to allow them access to palliative care, or “comfort care,” without regard to their expected lifespans, since there’s no accurate way to estimate them.

Her message to Medicare: “If comfort care is the goal, patients should be able to access that whether they live a month or two months or six months.”

If a loved one has dementia, you may want to ask about hospice care for them. And when you are talking to your family about your end of life wishes, let them know what your wishes are about this so they can be educated if they need to communicate your wishes to your care providers.

…[I]f an individual dies intestate (without a will) the probate courts will determine how to distribute that person’s assets. And although the court system may ultimately decide to distribute the individual’s assets in a manner that is consistent with his or her wishes, there is no guarantee that this will occur.

From Why You Should Draft a Will at Forbes.com

Can we do anything about the risks to our less than sturdy aging parents when their over-sized or troublesome pets become a problem? Maybe not much. We can suggest, tactfully, that a home care worker go along on the dog walks “just for my peace of mind, Dad.”

From How to Handle Aging Parent’s Pets .  Note that Scituate Animal Shelter has a program to help seniors with their pets. Click here for details.

Find out on the New York Times Old Age Blog whether you can claim your parent as a dependent.

Get some advice on choosing a guardian for your child.

Very often the people in my office (or reading my website) are under some type of stress. Either they are overwhelmed caring for an aging parent or ailing loved one, they are nervous about planning for their future and thinking about their death or disability, or someone close to them has passed away. I will often talk to my clients or their children about how they handle stress, because not dealing with it can hinder the legal process and strain family relationships.

Why would your lawyer care how you deal with stress?  Someone who is overly stressed may not reach out for help because they are stuck in a place of thinking they have to “do it all.” They may rush to make decisions they later regret, just to get it over with. Or they will not follow through with the process because they don’t want to think about it. The legal process can be complicated by a client who is avoiding dealing with things because they feel overwhelmed.

Their stress may start affecting their job or family life, which puts the needed legal work on the back burner.  And often times delaying a plan can lead to more costly work in the future. I would much rather help my clients put a plan in place early on in the process when it is generally most cost effective and less stressful, than deal with a client under pressure later.

Some ways to deal with stress are:

• Making sure you get outside for a walk every day,
• Eating healthy foods and drinking enough water,
• Scheduling in breaks, even if you don’t think you need them,
• Talking to a friend or counselor,
• Yoga or meditation,
• Swimming (one of my favorite ways to reduce stress),
• Knitting or other crafting,
• Writing in a journal.

Legal work is a team effort, and the team functions best when everyone is less stressed.

While we know that we mean well when we want to make sure our parents have their estate plan in place, I think that what our parents hear is “Hey, you are going to die soon and I want to make sure I get some stuff. So, can you go spend money on a lawyer to make my life easier?”  Just as when we were young and our parents didn’t want us to drive late at night or take us to the mall we heard “I am trying to make your life miserable and insure that you are the least popular person is school with the most unfashionable clothes.”

There are a few ways to bring up the issue of your parents estate plan.

1. Don’t Make It About Stuff. Yes, we are all going to die and someone is going to have to figure out what to do with our stuff. However, talking about planning for incapacity can be a better way to approach the conversation. Bringing up the topic by talking about a relative with health issues, or a newspaper article about someone who didn’t have a plan in place for disability and how that affected them and their families can be a good introduction to asking your parents about whether they have health care proxies and powers of attorney in place so someone can help out if they need it.

You might not even have to mention the Will. If you can get your parents to make an appointment with an attorney so they can do their health care proxies and powers of attorney, the lawyer will talk to them about their Will and other estate planning documents.  And having this topic brought up by the professional rather than their children can make them much more open to talking about it.

2. Get Your Papers In Order. If you are going to bring up your parents estate plan, you’d better be sure to have your own affairs in order (or at least have an appointment scheduled with your attorney.)  This can also help allay some of the fears they might have about the process.  You can talk to them about what it was like for you, and how you felt having to consider what would happen to you and your family in the event of your disability or death.

3. Offer Assistance. Your parents may have been putting the process off because they simply don’t know where to start.  If they are open to it, you could get some recommendations for attorneys, call some of them to get a feel for their style and availability and even offer to drive your parents to the appointment if they are uncomfortable driving.  Just bring a book, since you will be sitting in the waiting room. And keep in mind that even if you are paying for the attorney, this does not override the attorney/client confidentiality.

4. Bring It Up Early and Often. These things don’t have to be a one time, big deal conversation, especially since those can be intimidating.  You can mention over lunch one day that you feel so much better having put your estate plan into place. Then you could forward a news article about the topic to your parents. You could mention how difficult things were for your in-laws when their parents passed away because they didnt’ have an updated Will and the family was fighting over things.  You don’t want to be a broken record, but there are plenty of times to casually bring up the issue. When they are ready, they will let you know.

5. Involve One of Their Peers. It may be that your parents are simply uncomfortable talking about these issues with their children. They may have certain ideas about the parent/child role and not want it subverted.  In this case, you could always ask an aunt or uncle to bring it up, or maybe one of their close friends. Again, stress that you want to make sure they have a plan in place for who should take care of health care decisions and paying their bills in the event they are unable.

6. Find Out About The Alternatives. It may be that your parents simply choose not to put a plan in place. And that is their right. However, you can still visit an attorney to find out what the ramifications are to this.  The attorney can explain the guardianship process that would need to be pursued so that someone could make medical decisions, the conservatorship process to allow someone to handle their finances and property if they become unable, how property is distributed if someone dies without a Will, the people generally appointed by the Court to fulfill these roles and the costs.  You can share this information with your parents if you like, so they at least understand the consequences of choosing not to act, and you’ll be as prepared as you can be.

You can also give your parents this article I wrote called “So, Your Kids Want You To See An Elder Law Attorney.”

The American Bar Association explains why in their pamphlet Why Am I Left in the Waiting Room?, which outlines the “Four C’s” of elder law ethics that lawyers are required to follow:

Client Identification: The most important thing for an attorney to convey in the initial meeting is “who is my client.” This needs to be made clear to everyone in the room. The “family unit” or “the situation” cannot be my client.  If you bring your mother in to have her Will drafted, your mother is my client. Even if you are paying the bill. Even if you made the appointment. Even if she tells me in our meeting that she wants to disinherit you.

Conflicts of Interest: Lawyers must avoid conflicts of interest.  Many times, the parents and the children will have different interests in the outcome of a situation.  It may be in the best interest of the child for the parents to gift them large sums of money, or a house. However, it may not be in the best interest of the parents to make these large gifts when they may need the resource to provide for their own care and standard of living.  An attorney could not represent the children and the parents in this situation.

Confidentiality: A lawyer must keep information and communications between her clients and her confidential.  I cannot share any information with my client’s family unless they give me specific permission to.  Sometimes, an adult child will call me to find out where things are in the process, or question why their parent made a certain decision.  I cannot share this information with the child, and they would be better served to ask their parent directly, or, in some cases, mind their own business.

Competency: Many times a child will want to accompany their parent or parents into the meeting because they think their parent won’t understand what is going on, or they are afraid their parent will leave out important information.   However, assessing the client’s capacity if part of getting to know the client.  By meeting privately with the client, I am able to find out if they can explain the problem or express what they need. If someone else is in the room answering the questions, I have a hard time determining if my client understands.

There may be times where I meet with my client privately, and then they ask if their child can come back in the room so that I can explain to them what the plan is. This is fine, since it is done after the meeting with my client and it is with my client’s permission.

These rules make a lot of sense if you think about it – a Will or Power of Attorney can be challenged if the client was under undue influence when it was signed. This might be of special concern to families where one child is the primary caregiver of the parent, and the primary beneficiary under their Will.  By staying in the waiting room, you are less likely to be accused of exerting undue influence over your parent.

So, feel free to call and make the appointment for your parent, and even drive them here. Just don’t feel slighted when I ask you to wait in the waiting room.  I promise there will be interesting things to read.

See also: PA Elder, Estate & Fiduciary Blog.