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Trust Law/Level IV · Trusts that care/4.2 Old age and long-term care/Lesson 7

Planning conversations with aging parents

How families in the US often start planning conversations with an aging parent, what to gather, and which documents besides trusts are involved.

Education, not legal advice. Trust law changes from country to country and state to state, and the right structure depends on your situation. Anything you sign should be drafted or reviewed by a qualified lawyer where you live.

The lean path

The cheapest, lowest-tax, simplest and most private route the law allows, best first. Each step names the rule it rests on and the condition that keeps it lawful.

  1. A durable financial power of attorney, signed while the parent has capacity, avoids a court guardianship or conservatorship; under the Uniform Power of Attorney Act it is durable unless it says otherwise, but some states need express words.
  2. Health decisions need separate documents: a living will and a durable power of attorney for health care. A financial power of attorney gives no medical authority, and names, forms and witnessing rules vary by state.
  3. A signed HIPAA authorization lets named relatives receive health information even while the parent decides; a health-care agent with current authority is treated as the personal representative under 45 CFR 164.502(g).
  4. Free help first: State Health Insurance Assistance Programs, the Eldercare Locator and the CFPB’s guides for agents. An elder-law attorney represents the parent, not the children, so fees should be agreed in writing.
  5. Where the parent lacks documents, the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act bars a court appointment if a less restrictive alternative, such as a representative payee, would meet the need.

MaterialsA list of your parent’s bank, investment and retirement accounts and the institutions that hold them, if your parent is willing to share itCopies of any existing will, trust, power of attorney or health-care directive, if your parent is willing to share themContact details for your parent’s doctors and health insurer, if your parent is willing to share themYour state’s published advance directive forms or guidance, if it has them, to read for reference

Wonder

  1. How do I start this conversation without making my parent feel controlled?
  2. Which documents give someone authority over a parent’s money, and which over health decisions?
  3. When might a family bring in an elder-law attorney or a geriatric care manager?

Explore

  1. Many families find these conversations hard to start. Some begin with a question about what matters most to the parent, such as where they want to live and whom they trust, rather than with legal forms. Others use a natural moment, such as a friend’s illness, a move or a doctor’s visit. Framing the talk around the parent’s own wishes, rather than the family’s worries, can make it feel less like a takeover. More than one conversation is usually needed, and the parent may want time to think or to talk to someone privately first.
  2. An adult is presumed able to make their own decisions, including choices their family disagrees with. Capacity is not all-or-nothing: a person may be able to make some decisions but not others, and capacity can change over time. To sign a will, power of attorney or health-care directive, the parent must understand what they are signing; the legal test differs by document and by state. The parent remains the decision-maker. Family members can help gather information and ask questions, but the documents and the choices are the parent’s.
  3. Documents beyond trusts carry much of the weight. A durable power of attorney for finances names an agent to handle money matters and, because it is ‘durable’, keeps working if the parent loses capacity. Under the Uniform Power of Attorney Act (2006), adopted in some form in many US states, a power of attorney is durable unless it says otherwise; in some other states it must say so expressly. A trust covers only assets titled in it (lesson 3.1.4). Without these documents, a family may have to ask a court to appoint a guardian or conservator, which can be slow and costly.
  4. Health-care decisions need separate documents. The US National Institute on Aging describes two common advance directives: a living will, which records the treatments a person would or would not want, and a durable power of attorney for health care, which names a health-care proxy to decide if the person cannot. Names, forms and rules vary by state, and some states combine both in one form. Some families also discuss medical orders, such as a do-not-resuscitate order, with the parent’s doctor. A financial power of attorney does not by itself give authority over medical decisions.
  5. Under the US federal health-privacy rule (HIPAA), a provider must generally treat a patient’s ‘personal representative’, someone with authority under state law to make the patient’s health-care decisions, as the patient for relevant records. A health-care agent whose authority is in effect usually qualifies; an agent under a financial power of attorney alone usually does not. A signed HIPAA authorization can let other named people receive information, including while the parent still makes their own decisions. Providers may also share some information with family involved in care unless the patient objects.
  6. The parent decides who is told what, but many families find that keeping siblings informed about who has agreed to serve as agent or trustee reduces later misunderstandings. If disagreements arise, some families use a neutral mediator. An elder-law attorney represents the parent, not the children, and drafts documents to meet state requirements. A geriatric care manager, now often called an Aging Life Care Professional, is usually a nurse, social worker or similar professional who assesses needs and coordinates care. Fees vary, so families often ask for them in writing.

Key facts

  • A durable power of attorney for finances keeps working if the principal loses capacity; under the Uniform Power of Attorney Act (2006), a power of attorney is durable unless it says otherwise.
  • A living will records medical treatment wishes; a durable power of attorney for health care names a health-care proxy to decide.
  • A financial power of attorney does not by itself give authority over medical decisions; health-care documents and forms vary by state.
  • Without a durable power of attorney, a family may need to ask a court to appoint a guardian or conservator for an adult who loses capacity.
  • Under HIPAA, providers generally treat a health-care agent with current authority as the patient’s personal representative; a HIPAA authorization can let other named people receive information.
  • An elder-law attorney represents the parent; a geriatric care manager (Aging Life Care Professional) assesses needs and coordinates care.

Exercise nine, six, three, one

9CollectList up to 9 documents or pieces of information your parent may want to gather (some families have fewer), such as a will, a list of accounts, insurance policies, beneficiary designations, doctors’ details or a health-care directive.
6ClusterSort them into 6 categories: financial authority, health-care wishes and authority, property and accounts, income and insurance, contacts, and items you are unsure about.
3DistillReduce the 6 categories to 3 groups: documents your parent already has, documents your parent may want to discuss with a lawyer, and information only your parent can provide.
1CrystallizeWrite 1 sentence describing how you might open the conversation in a way that keeps your parent as the decision-maker.

Fact check

Dates, figures and claims checked against the published sources listed below.

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