even when there is no factual basis or past incident by the children to support it.
There are ways to put these fears to rest, or at least to reduce them, and some ideas to combat those fears include:
• Not all incapacity documents put the children in charge as soon as the document is signed. In fact, the vast majority of documents do not. An enduring power of attorney is specifically designed to be used as a planning ahead tool. (For alternate names for an enduring power of attorney, see the Introduction.) The enduring power of attorney document is signed by a parent while he or she has mental capacity and it legally “endures” or “continues” once the parent loses capacity. With this type of document, the children cannot exercise any legal authority over a parent’s assets until the parent has been declared incompetent. The declaration is usually provided by a doctor or by two doctors. Knowing that he or she will still have control of assets and finances after the documents are signed will probably go a long way toward dealing with a parent’s anxiety on that point.
• Whether the document that is signed is used immediately, or is designed to be used in the future, is up to your parents and depends on what help they need. Your parents retain control of the document and of their financial affairs as long as they have mental capacity.
• In most jurisdictions, the parent can include specific controls or requirements for accountability that would come into effect once the children start using the enduring power of attorney. This kind of clause is not included very often in enduring powers of attorney, but that is largely because people are not aware of them and do not realize that they can request them. The popularity of this sort of clause is slowly catching on. For example, an enduring power of attorney might require the children to give a full accounting of everything they have done with the parent’s finances to someone else on a regular basis; for example, once a year. The person that they must give the accounting to might be the parent’s lawyer or accountant, but it is much more frequently another family member. For example, if you were to be appointed as the representative under the enduring power of attorney, you might have to give an accounting to one of your siblings once a year.
• Providing this kind of accounting prevents a representative from operating in secrecy. It often acts as a deterrent against someone who is tempted to do something with the parent’s money that he or she knows ought not to be done. The possibility of being found out usually deters people.
• Another alternative is that the document might specifically say that family members have a right to demand an accounting whenever they want one. The purpose is to bring transparency to what the children are doing, in the hopes that will keep the children honest as well as reduce the number of questions and disputes that might arise. These are just examples, as documents are always tailored to the specific situation of the parent and his or her family, but they show how it is possible to make sure that the children in charge do not simply operate in secrecy.
• Try to find a lawyer who specializes in estate planning so that your parent knows that he or she is getting experienced advice from someone who knows all of the ins and outs of incapacity. Do not allow an accountant, a banker, an investment advisor, or a law student to draft the documents. Understand that the real value in the estate-planning process is not necessarily the piece of paper itself but the discussion, ideas, and advice that take place while the documents are being planned. Your parents should maximize that part of the process so that they have a chance to ask questions and explore options. There is simply no replacement for the peace of mind your parents will gain by talking with someone who really knows how wills and incapacity documents work and can anticipate problems before they have a chance to occur.
• Stay out of the meeting that takes place between your parent and the lawyer. Even when your parent feels that he or she wants the moral support of you being there, you should try to avoid being in the room. If it cannot be avoided that you are there, stay quiet and let your parent do the talking. If you are the one asking and answering the questions, you are the one getting the legal advice and not your parent. Also, the fact that your parent cannot speak for himself or herself may mean that capacity is already diminished, and hiding this fact from the lawyer is only going to result in the wrong documents being prepared. The lawyer may even refuse to prepare documents for your parent unless the lawyer is able to meet alone with the parent for at least part of the meeting. This should be comforting to your parent in that it shows that the lawyer is interested in helping the parent achieve his or her goals only.
7. Not Knowing How to Hold a Family Meeting
Plenty of people might like the idea of getting together with everyone and having a meeting, but most families are not in the habit of holding formal meetings. In fact a family meeting, particularly a formal one with note-taking and a chairperson, would be rare to nonexistent for the majority of families. Most of us would not know how to go about it, how to gain the cooperation of others, or what to do afterward to make everything legally effective.
In other families, there are topics that are not only left unmentioned, they are purposely avoided. In some families, subjects such as family finance or planning how to deal with the death of a parent are taboo. The parents simply do not wish to discuss financial or personal affairs with their children under any circumstances. These are the hardest families in which to hold a meeting because the culture of the family works strongly against the success of such a meeting. Generally emotions will run the highest in this type of family, making rational conversations about legal topics very hard to hold.
This does not mean it cannot be done. It means that extra care must be taken to preserve the privacy and dignity of the parents so that they are comfortable. It also means that the children in this kind of family must have time and encouragement to adjust to their new roles in the family.
Reading this book will give you both an overview to help you set realistic expectations for a family meeting, and detailed information on holding the meeting itself. Consider sharing the parts of this book that you find most helpful with your family members.
8. There Is No Consensus on What to Do
This is not a reason to put off having a meeting. In fact, it is one of the best reasons in favor of having a meeting. One of the main goals of holding family meetings is to get to a consensus on important issues. It likely will not happen instantly. You should anticipate that it may take more than one meeting to make decisions, if people are starting with no preconceived ideas. Your first discussion will probably be a general one about the need to do some planning and to pinpoint the areas that need to be covered. After that you will set out some time lines and goals to be achieved and go from there.
If your family’s estate-planning needs are complex, realize that you may end up having several meetings, each of which builds on what was done or decided in the meeting before. This is not at all unusual. Estate planning is always a process and you should not be dismayed or discouraged by the fact that it will not be accomplished in one day.
You should understand that your family may never reach the point where everyone agrees about what should be done about your parents’ estates. Is the consensus of everyone on every issue actually necessary? Your parents might have plans that some of the children will agree with and others will not, but as it is your parents’ estates it is their right to make that decision. Perhaps the purpose of your family meetings is not to get everyone’s agreement but simply to let everyone know what your parents are planning to do. Perhaps everyone will have to agree to disagree.
9. Privacy Concerns
Anyone undergoing the process of estate planning will have to divulge detailed information about his or her income, assets, and debts to the estate-planning lawyer. That is the only way a client is going
