Question:
My mother is 81 and was diagnosed with mild dementia. She has named my brother and me as co-agents under a durable power of attorney. I will be the one to move in with my mom as her dementia gets worse and will make all the arrangements for any type of care. I think it’s reasonable for me to be compensated for that by a gift or through a family caregiver contract. It’s only fair that my brother should have a gift as well. My brother and I want the flexibility to be able to sell her house in the future if she is permanently in a nursing home. I would like the flexibility to move Mom to another state when her dementia becomes severe enough that she can’t object. How should I approach an elder law attorney with my own needs and priorities for the future? Can I make my needs known to the attorney without the attorney assuming I’m acting unethically? Is it considered normal for me to give the attorney a general plan for what I want in the coming years? I understand that legally, mom is the client, but I am a big part of mom’s future and I have needs too. How do families and elder law attorneys deal with this situation in real life?
Answer:
These are very good and difficult questions. A lot can depend on the elder law attorney with whom you work. Some are stricter than others about exclusively representing the elder parent. In his confirmation hearings to become a justice of the Supreme Court, Louis Brandeis suggested that in certain instances he had been the “lawyer for the situation.” In short, a lawyer can represent multiple parties with differing interests as long as there is full disclosure and informed consent by all parties.
You should be able to work with an elder law attorney to work out a plan as long as both you and your brother are fully involved. The lawyer would have to meet independently with your mother to make sure that she is comfortable with the situation, even if she can no longer understand the finer points. But there may be attorneys who are less flexible. We would recommend interviewing a few who have offices near where your mother lives and choose the one you feel will work best with your family. To find an attorney near you, go here: https://www.elderlawanswers.com/elder-law-attorneys.
