Private Client Services Update – Coping with Capacity Issues in Parents

    By Lewis W. Webb III, Estate, Trust & Wealth Transfer

    As discussed in a prior article, the preferred path is for parents to allay any fears their family may have by adequately preparing for their retirement years. As the family is typically part of the solution, there has presumably been some degree of communication with them or a process exists by which the plan can be made known to them when appropriate.

    It is often the case, however, that no effective plan for incompetency is in place (the existing Wills only address what happens at death) and when the children become concerned about their parents’ ability to take care of themselves, the issue comes to the front. This article focuses on what steps the children might take, which may involve some difficult conversations with their parents. As a note, incompetency is often not a black or white determination or a cliff event triggered by something like a stroke but it can be more difficult to deal with gradual deterioration in ability and capacity.

    The primary factor in successfully dealing with the situation is the unity of the family around helping the parents. The primary leadership roles typically fall on the children, who gradually take over the role of parenting their parents. The mantra of the family needs to be caring for the parents with loving kindness, which may be difficult due to prior family dynamics or when the situation gets stressful or difficult. Dignity is essential, as well as respecting as much as possible the parents’ goals and objectives articulated while competent.

    1. Determine if a plan and structure chosen by the parents has been put into place and, to the extent not (and to the extent the parents have the ability), putting into place such a plan or filling in any missing gaps. If a plan is in place, now is the time to begin implementation.
    2. Build a good team of professional advisors. Hopefully, the parents have a team in place that can be used, as they have much of the background facts and history and are comfortable and familiar to the parents. This is not to say that the family should not watch out for abusive situations, especially where an advisor relationship is new and possibly entered into in a vulnerable condition. Having a good geriatric doctor may be advantageous. Maintaining excellent relations with and being supportive of the parents’ caregivers is crucial as they hold the key to much of the parents’ a) quality of life, b) physical, emotional and financial safety and c) will be an early warning system and primary source of information on the parents’ status.
    3. For many reasons, information sharing and transparency between family members is crucial. Thanks to email, it is easy for the family to create email lists and promptly circulate information. Typically after each visit with the parents and/or one of their advisors the family member participating in such would email any new information learned and the current health status of the parents. Communicating similar information to the advisors is often important so that appropriate and informed decisions can be made.
    4. In a significant portion of the situations, the time demands on the family will be large. Coordinating to best effect is essential. Visits from family spread out over the year are crucial in keeping the parents happy and maintaining their intellectual stimulation, as well as producing frequent opportunities to check in on their health. While joyful, it is of only moderate help if the holiday season is packed with visits and the rest of the year is quiet. The parents’ strength for compressed multiple visits is most likely limited as well. Where caregiver activity falls on the shoulders of one child more than others due to time availability and/or geography, it is crucial to respect the burden placed on that child and give him or her maximum support possible. That child will need vacations and time off and opportunities for the parents’ physical care to fall on other shoulders.
    5. Maintaining tight control over financial information and mail is essential. Bad intentioned caregivers have plenty of time and opportunity to pour through documents and financial reports left in the house. The mail is both an early warning sign of trouble, as well as a way of staying on top of the parents’ spending and financial patterns. Identity theft often begins through the mail and many elderly are unable to say no to a charitable donation request, sending money in with each solicitation letter received, regardless of their financial ability to actually make such gifts.
    6. The main area of abuse within the family typically centers on money. The parents are often vulnerable and weak and unable to withstand pressure from a family member. In an only too typical situation, a family member pressures for an unfair advantage through either a current gift or change in the Will. This is often sought by a child who has relied on the parents for financial support over the years and is now economically fearful of changes that might come or loss of the favorable treatment upon the parents’ deaths. It is rationalized by the taker in any number of ways. This advantage when taken will justify another family member putting pressure on for a makeup gift or change to his advantage, which triggers the first taker to circle back or another taker to enter into the process. The cycle is often vicious and extremely stressful for the parents. Unless a specific gifting program or process was put into place by the parents, the family should deal with this between themselves and agree that from this point on all gifts should be transparent and equal between siblings or family units. From time to time, a family may agree to maintain a disproportionate gifting pattern where it makes sense. Outside of these two scenarios, no changes in gifting history from the parents should be made without the agreement of the whole group. Hopefully, there is enough moral accountability and/or persuasion between family members, but this is not always the case, and then more aggressive interventions will be needed (this will be discussed in our next article on this topic, along with addressing how to deal with predatory new outside relationships that may show up).
    7. As a last resort, the family may need to go to court to have a Guardian (who make decisions with relation to the body of the parent) and/or a Conservator (who makes decisions with relation to the assets of the parent) appointed. Going to court can be structurally confrontational, and, depending on the mental health of the parent, may be extremely stressful to the parents and family relationships. Accordingly, having the family agree upon and take a united stand on pursing this is important.

    Addressing these dynamics proactively with the whole family working together allows a parent to best enjoy their retirement years and will minimize the difficult problems that arise in far too many situations.

    Lewis W. Webb III is Chair of the Firm’s Tax Department and Private Client Services Group. He has traditionally represented high net worth families and owners of closely-held businesses in all areas of their estate planning. Currently, he is also spending significant time on charitable giving matters, community and private foundations, and transmission of family values to the next generations. He is a graduate of the University of Virginia School of Law. His civic involvement includes service on the United Way, CHKD and ODU Educational Foundations, as well as several Private Foundations. He is also Chair of the Endowment Committees of the Chrysler Museum and the Virginia Aquarium and the Distribution Committee of the Business Consortium for Arts Support. Lewis can be reached at (757) 624.3247 or

    The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2024.