James & Leu, LLP, Who Can You Trust?, as Seen in SENIOR Magazine

Who Do You Trust?

By: Lori A. Leu, James & Leu, LLP, for Collin SENIOR Magazine

Long-term care planning involves many important decisions, and nothing is tougher than deciding how to involve your adult children in the process. They will always be your children, no matter how old they get. You remember their childhood mistakes all too clearly; that baseball through the window, the hassles over chores and homework. Then their teen years brought you another whole new set of parenting challenges. Remembering it all makes it difficult to view your children now as responsible adults that you can trust with your care, your money, and your future—no matter how much they have grown and matured.

And if there are other problems in your relationship, the issue can become even more complex. If you are embarrassed about financial mistakes you have made, or the relationship is strained, it can be hard to ask for help. But even if your family is more like All in the Family than Leave it to Beaver, your adult children may still be best suited to care for you as you get older.

So what are the options to consider, and what factors should be weighed in making these critical decisions? First, and most important, is: Who do you feel you can trust to look out for your best interests? If you reach a point when you cannot make decisions for yourself, who should you designate as your agent in financial and health care matters? If that person is one of your children, then there are several other considerations.

If you have more than one child, you must decide which child to name as your agent. Will you choose based on birth order, location, family status, ability, lifestyle, or other things? If you are worried about hurt feelings, explain it to them lovingly, but don’t feel guilty. It is your life and your decision.

Do your children still disagree over everything even as adults? Then, just as you did when they were young, take charge. Put everything in writing. Assign the responsibilities. Let everyone know your wishes. And, tell them that if they love you, they will not fight over your care.

On the other hand, if you do not fully trust your adult children, then by all means, do not give them a power of attorney or name them as executor in your will. Designate someone you do trust. You are not obligated to choose a family member over any other person. You have complete control when selecting who will make decisions for you, both when you are living and after you are gone. Take advantage of that enormous opportunity, because if you don’t, the courts will make decisions for you.

Texas law provides that if you have not designated an agent to make medical decisions for you should you become incapacitated, the medical staff should look first to your spouse, and then to your adult children. And, many skilled nursing facilities will turn to your adult children for decisions, as the “surrogate decision maker.” Creating a durable power of attorney for an agent outside of your family is extremely important if you want your health care providers to bypass your adult children and rely on your agent for medical decisions.

More importantly, if someone believes you are not competent to make decisions on your own, they may seek guardianship over you. Most courts favor appointment of adult children as the guardian. The best evidence that your adult child should not be your guardian would be your prior designation of someone else to take that role. Otherwise, the court is likely to give your adult child this responsibility to make all decisions on your behalf, in spite of your preferences. Get it in writing now, before the issue arises. If you wait until your competence is in question, it may be too late to have your wishes honored.

Every one of us is aging. It is inevitable. Control what you can by choosing who will act on your behalf while you are living, and will carry out your wishes after you are gone. If you trust your adult children, give them the gift of granting them that authority. If you do not, then name the people you do trust. The worst thing you can do is nothing.

Lori Leu is an Elder Law attorney with the firm James & Leu, LLP. She helps clients sort through these issues every day and can be reached at 214-427-8400