By Maureen O’Connell, Attorney at Law
Do you plan to become disabled in your lifetime? The statistics tell us that one third of all individuals in the United States will have a temporary or permanent disability before they die. If you look at the over-eighty-five population fifty percent or more of these individuals will suffer dementia.
Dick and Jane have been married for thirty years. They met after their respective spouses died and decided to get married. They both have adult children from their first marriages. Dick moved into Jane’s house. A year ago Dick was diagnosed with a terminal illness. Jane panicked. She called her daughter Leslie and said, “Please help me take care of my husband.” Leslie said, “Mom, you’re too old to do that. I’m going to take you to a lawyer. I will have the lawyer give me your power of attorney and put your house in a trust. I’ll be the trustee.” Jane was suffering from mild cognitive impairment and did as her daughter suggested.
One month later, Leslie moved her mother into a skilled nursing facility in another state approximately a thousand miles away from Dick. At the time, Dick was hospitalized, and when he was ready to be discharged he asked Leslie if he could move back into the home. Leslie said no, it wasn’t his house, and he was virtually homeless. Leslie has made sure that Dick and Jane have no contact. She has not allowed Dick to enter the house to claim his personal property. Even as her husband, he is not able to spend his final days with her. He has rented a penthouse suite in an assisted living facility and would love to share it with Jane, but is unable to. Jane misses Dick, but her daughter does not allow her even to make phone calls. Jane cries every day.
Dick and Jane had no disability planning. Jane did not give Dick the right to live in her house while she was alive or even for some time period after she died. She did not give Dick any control of her financial or health matters including the right to visit her.
What could Dick and Jane have done to protect themselves? They needed to meet with a lawyer together and discuss disability planning including options to safeguard their wishes when they would no longer be able to adequately take care of themselves. They needed to realistically look at what-if scenarios and make appropriate arrangements while they still had their wits about them. House-sharing agreements, powers of attorney, access to financial accounts and clear communication with family members could have allowed Dick and Jane to remain together and support each other in difficult times, rather than being separated by them.