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Care for kids parents? How to avoid legal hell

Caring for two generations can be very difficult, especially when it comes to estate planning and health care issues. Attorney Alan Kopit offers some advice to help keep things in order.
/ Source: TODAY

"In the middle" is a term used to describe a generation stuck between their parents and their children. A recent survey by the AARP found that nearly half of all baby boomers have children at home and parents who are still living — nearly a quarter are caring for elders. This often puts the person "in the middle" in a very difficult position because while you want to do as much as you can for your parents, you also need to care and provide for your own children and marriage. But there are steps you can take to help bridge the gap. Here are some tips:

Caregivers' concerns
Being in the middle of two needy generations means your personal time and financial resources are being drawn in two different directions. This can be a very stressful situation if you are not prepared for it. A caregiver must examine the issues relating to parental care, while at the same time not neglecting day-to-day responsibilities as a parent. By understanding the needs of two different generations, we can make decisions in advance that will satisfy the wishes of the older generation while meeting the needs of the younger one

How is this done?
There are various legal tools that can be used to establish a person’s wishes in advance. Most important, these tools must be used (or at least should be used if possible) before a medical emergency or other crisis occurs so that a thoughtful approach to available options can be undertaken. This is done through the use of various estate planning documents (some traditional, and some more novel) as well as through the use of advance directives, where someone states their intentions in advance so that their needs can be met if they are unable to make decisions for themselves in the future.

The legal documents
Whether you are caring for elderly parents or for your children, it is imperative to consider the appropriate estate planning documents. The difference between what is needed and how it is developed is one of perspective — the caregiver will be assisting his or her parents to establish an estate plan to meet their needs later in life, while the caregiver’s estate plan, developed to address the needs of the children, will address different concerns. 

Consider the following estate planning documents and advance directives:
A will, which is simply a written document in which the maker states his or her intention regarding who receives property at death: In order for a will to be enforceable, it must comport with certain legal formalities, but it can be a very simple document. If someone dies without a will, the laws of the state in which the decedent resided will dictate where his or her property goes at death. 

A living trust let’s you arrange how you want your property managed while you are alive and how your assets should be distributed after your death. Living trusts are popular because they are a tool that allows your property to pass to your heirs without going through probate (when property passes via a will it must go through probate). Unlike a will, a trust can be used to specify how your property will be managed during your lifetime in case you become incapacitated. 

A living will allows you to state in advance your wishes regarding treatments that may prolong your life.  It is directed to people who will be caring for you (for example, healthcare personnel) and sets forth your intentions to refuse medical or surgical treatment. 

Healthcare power of attorney: It is imperative that the caregiver know who will be making healthcare decisions for the care recipient (it may not be the caregiver) in the event that the person is incapacitated. This is accomplished through a healthcare power of attorney, which clearly sets forth who has the authority to make healthcare decisions. (Although multiple people can be given the authority to make healthcare decisions (for example, all of the children, only one of the designated people should be needed to make a decision). It is important to note that the care recipient remains in control of healthcare decisions unless and until he or she becomes incapacitated. 

Power of attorney for financial decisions:This is an important document because the person given the financial power will have the ability to handle assets in the event the care recipient is incapable of doing so, including paying every day living expenses, collecting Social Security, Medicare or other government benefits, handling banking transactions, filing taxes and managing retirement accounts.

It is also critical that the caregiver not neglect his or her own situation if giving care to a parent. This means, at a minimum, that the following be considered:

Estate Planning Documents: While the estate planning issues are similar to those faced by the parent, other issues are important with minor children (for example, the appointment of a guardian should both parents die). 

Life insurance and beneficiary designations: A parent should review life insurance needs and the beneficiary designations so that if he or she has minor children, it is clear where the proceeds will be deposited until the children reach the age of majority.

Other suggestions:
Safekeeping. While the estate planning documents of your parents are theirs to keep, you should maintain copies of the documents and know where your parents are keeping them.  Moreover, I suggest you keep all of the important personal documents, whether for your parents, for you or for your children, in one safe place. The need for organization is obvious — in a medical emergency or other crisis situation, it will be necessary to find these documents quickly. 

Communication. These are difficult issues to address, but you're wise to do so while parents are healthy and while you are able to prepare for your children. Communication with elderly parents can be tricky because you are asking parents to give up some control over their lives.  Social service agencies may be helpful in learning how to talk about these issues with parents.

Speak to a Lawyer. While many of the legal documents we discussed are quite simple, they must be drafted precisely. It may be a wise investment to consult with an experienced estate planning lawyer when considering any of these documents.

Help is available:
There are many organizations that can assist you:

Family Caregiver AllianceWeb site: www.caregiver.orgphone 415-434-3388.

The AARPWeb site:

The National Family Caregivers AssociationWeb site: www.nfcacares.orgphone 800-896-3650

National Council on AgingWeb site: www.ncoa.orgphone: 202-479-1200

Alan Kopit is a consumer attorney with the firm Hahn Loeser and Parks LLP in Cleveland, Ohio and a regular contributor to “Today.”