Zane is a brilliant man, a former well respected, famous psychology professor who taught at a prestigious university. And he has advancing signs of early dementia. He still has a lot of awareness of what is going on but he is no longer able to safely care for himself or his money.
He has lived alone for the last six months since his wife died. She handled all the finances and paid the bills. She saw to the grocery shopping and cooking. She made sure he took his medicine. She was a wise and forward thinking woman who also ensured that they planned ahead for possible health declines for either of them.
Smart Planning
Their two adult children had never gotten along well. Zane and his wife went to their estate planning attorney in hopes of devising a way to to avoid having their kids fighting if either one or both of the parents could no longer manage independently. They considered what could happen when one passed away and someone had to take over managing the money. They didn’t want it to be one of their children. They named a competent fiduciary they knew and amended their trust, appointing her as the one to be in charge, should the need arise. What would trigger that change was spelled out well in the amended trust.
The need did arise. After his wife died, things began to fall apart for Zane. He couldn’t keep track of is bills. He forgot to take his meds. He couldn’t remember to call the doctor back when he got a message asking for contact. He lost 30 pounds in four months. He had to go to the emergency room twice with trouble breathing. His daughter was largely incompetent to take care of his needs, though she lived close enough to visit every month and stay a week. His son lived out of state. The fiduciary Zane and his wife had named found out about Zane’s dire situation and wanted to step in as planned. But Zane forgot he had appointed her.
Resistance, stubbornness, and how the fiduciary handled it
Zane’s trust stated that he could resign as trustee (totally in charge of everything on his own) or he could be removed if a doctor evaluated him and found that he could not manage finances alone anymore. The fiduciary knew a skilled psychologist who could do this evaluation. The psychologist came to Zane’s home and spent several hours with Zane, doing some testing and an extensive interview with a lot of questions about how well Zane understood his finances. As smart as Zane is, he could do all right on the testing but it was clear from the interview that he no longer had what the law calls “financial capacity”. He could not keep track of bills, investments nor plans for safeguarding his assets. He was very vulnerable to exploitation. It was time to resign as trustee and let the fiduciary take over.
The meeting
After the evaluation, the fiduciary asked the psychologist to meet with Zane and his daughter-in-law, whom he trusted, to offer him the opportunity to resign. It was a lengthy zoom meeting. Zane had every excuse imaginable to avoid making this important decision. He hemmed and hawed and stalled. The doctor skillfully used their common ground of psychology to gently confront the stubbornness Zane demonstrated and even admitted. “I’m stubborn as hell”, Zane said. But in the end he relented, as he was going to be removed by the legal means the fiduciary had if he didn’t resign. He signed the papers, which had to be notarized. A mobile notary, pre-arranged, was standing by and the notarization was done. It was official. The fiduciary stepped in and took control over the bank and investment accounts to protect Zane from a lurking abuser who kept trying to get access to Zane’s money.
The aftermath
The fiduciary had a long list of things needing immediate attention. As no competent family lived nearby, she had to arrange for in-home care and hire a person to manage it. Zane’s son and daughter-in-law had long offered to take Zane in to live with them. They had a nice place for him on their property, in a state with good weather. He had initially agreed to go visit them to “try it out for a few weeks,” but he would need a lot of help arranging that, packing up and traveling there. There was hope for his moving there permanently which would solve many safety problems for Zane.
The Takeaways
- Appoint a fiduciary to avoid family fights. We see a lot of crises related to memory loss and safety at AgingParents.com, where we consulted with Zane’s fiduciary. It is rare to see such excellent planning by an older couple who had the foresight to appoint a fiduciary in their trust. That took that potential responsibility for finances out of the hands of their warring kids. Their smart planning stood out. If this sounds like your family, consider appointing a neutral outsider, licensed and competent to do the job and put it in your estate planning documents.
- Get a doctor’s evaluation of an elder’s financial capacity. No matter how smart, accomplished or experienced a person is, they can lose the ability to make safe judgments about money as they age. The wise thing to do is to accept this possibility and ensure that their (or our own) estate plan does not create barriers to getting an elder removed from the trust when they become vulnerable to fraud and financial abuse. At least one doctor’s thorough evaluation of financial capacity should be a standard.
- Do not let a stubborn elder’s resistance stop you. Zane was admittedly stubborn and didn’t want change. But with skilled and compassionate help, he was able to make a decision to resign from his trust of his own accord. Consider getting such help if you find yourself in this kind of situation with your aging loved one. Above all, do not allow an elder’s resistance as trustee to open the door to exploitation by financial abusers. They are out there, sometimes in your own family.