Preventing and Resolving Family Disputes Over an Elderly Parent’s Care

Mother hugging smiling adult children outdoors. - elder care family disputes concept

Adult children may not always agree on the issues surrounding an aging parent’s care. However, if a parent becomes incapacitated and can no longer care for themselves, questions may arise. For instance, adult children may have to decide where their parent will live, who will care for them, and who will manage their finances. By taking a few proactive measures and ensuring the proper incapacity planning documents are in place, an individual can avert the potential for conflict between their adult children — and ensure their wishes will be carried out.                     

Drafting for the Incapacity Planning Documents

Estate planning doesn’t only have to do with what happens after you pass away. It also concerns planning for the possibility of incapacity or disability. Importantly, certain legal documents can be drafted to protect you if you no longer have the ability to pay your bills, attend to your business matters, or care for your daily needs. Incapacity planning documents would only become effective if you lack the physical or cognitive ability to handle these matters on your own. 

An attorney can assist you with drafting the following documents to ensure your wishes are met in the event of incapacity, and eliminate disputes among family members: 

  • Advance Health Care Directives — An advance health care directive can specify the type of medical care you want in the future and designate someone to make healthcare decisions on your behalf if you cannot make them for yourself.
  • Financial Power of Attorney — A financial power of attorney can appoint someone to make financial decisions for you, manage your property, invest your money, and handle your business affairs if you become incapacitated.
  • Physician’s Orders for Life-Sustaining Treatment — This document is intended to guide first responders or other care personnel regarding end-of-life. This document differs from an advance health care directive as it contains an option for a “do not resuscitate” order and must be signed off on by a physician or other healthcare provider.
  • Living Will — A living will allows you to decide whether you wish to receive life-prolonging treatment if you have a terminal condition that would result in imminent death.

The incapacity of a parent can be stressful and overwhelming for their children. Even when siblings get along, elder care family disputes can arise when there is disagreement over the medical treatment that should be rendered and the critical decisions that will need to be made. This can sometimes result in lengthy litigation, costly court battles, and irreparable harm to familiar relationships. This may be able to be avoided with advance planning. 

Using Living Trusts to Plan for Incapacity

A revocable living trust allows you to serve as the trustee and retain control over the assets that have been placed in it while you are in good health. A successor trustee can be appointed in the trust instrument to take over managing the assets and property if you are no longer able to do so. A well-drafted revocable trust can avoid the need for judicial intervention or a court-ordered conservatorship in the event of incapacity. Not to be confused with an irrevocable trust which cannot be altered or modified, a revocable living trust can be changed at any time.     

Conservatorship or Guardianship Proceedings

If an elderly parent becomes incapacitated and does not have documents in place that designate who will handle their financial affairs or care for their day-to-day needs, their family members may commence a conservatorship or guardianship proceeding. While a conservatorship gives someone court-ordered authority to handle your finances and property, a guardianship action appoints an individual who can make medical, legal, and residential decisions on your behalf. Each of these are judicial processes that involve presenting evidence to the court that must sufficiently demonstrate why the arrangement is needed.    

Any person who has an interest in the welfare of a person who is allegedly incapacitated can petition for appointment of a conservator or guardian. These types of actions can be particularly contentious if multiple family members seek to serve in the role. Disputes can also arise if there is disagreement over whether the guardianship or conservatorship is necessary at all. Having the representation of a knowledgeable attorney is vital to navigating the legal process smoothly — they can also provide information about possible alternatives or less restrictive options based on the specific circumstances of the case. 

Using Mediation to Resolve Caregiving Disagreements

Although every adult child wants the best care for their aging parents, they may not always see eye to eye regarding the services that should be provided. Some elder care family disputes may be effectively resolved outside of court using mediation. Depending upon the type of conflict, mediation can allow siblings to address their concerns and discuss decision-making with a neutral third-party who can assist with facilitating communication — and help to avoid litigation. 

Contact an Experienced North Dakota Estate Planning Attorney

Planning for incapacity in advance is the best way to prevent family conflicts. Located in Fargo, the attorneys at Fremstad Law Firm are committed to helping clients throughout North Dakota and Minnesota with a wide variety of estate planning matters to reduce the potential for elder care family disputes among their loved ones — and ensure their wishes are satisfied in the future. We welcome you to contact us online or by calling (701) 478-7620 to learn how we can help.