I spent twenty years of my legal career as a part time Mediator of civil court disputes in North Carolina Superior Court. I can’t say I enjoyed every mediation, but I can say I learned a lot in this process which informs my work with families undergoing the stress of the death of a loved one or caring for a loved one who is experiencing serious health challenges.
Unfortunately, decisions relating to an aging parent’s care can often spur conflict among siblings. If you and your siblings cannot agree on an overall plan of care for a parent, or even on a specific medical procedure, it can present a serious problem. In this blog I want to give you the basics of the options in this situation. Sadly, I have had many clients come to me in precisely this predicament and thinking the only option is suing a close family member. That, of course, is never what the parent wanted. No two situations are exactly the same; however, I can offer some general suggestions for you if you find yourself disagreeing with siblings about how best to care for a parent.
How Did We Get Here?
When you and your siblings were children, your parents cared for, supported, and made important decisions for you. At some point, you and your siblings reached adulthood and learned to take of yourselves. Most of us do not consciously realize that our parents are aging right along with us. That means that your parents will likely reach a point of declining health eventually. Sometimes this decline in health can include a significant decline in mental capacity. At some point, you may experience a role reversal of sorts. You and your siblings now need to care for, support, and make decisions for one or both parents. Accepting the fact that a parent can no longer safely care for himself/herself is difficult enough from an emotional standpoint. It can also result in practical problems if you and your siblings cannot agree on how to care for that parent – or even if the parent needs care. If your parent has reached a point where the law considers him/her to be incapacitated, it means your parent cannot make health care decisions. Consequently, someone else must make them. If you and your siblings are the closest relatives alive, and you cannot agree on a plan of care, it creates friction within the family as well as a significant legal problem.
Do you Parents have an Advance Directive and Health Care Power of Attorney?
If your parents had good legal advice, they executed the appropriate legal documents. In most cases, these legal documents will function as powerful and effective tools in resolving the decision making roles. Once everyone understand how and by whom a decision will be made, and that this is the choice of the Parent, it may eliminate the need for further action. In the State of North Carolina, a Health Care Power of Attorney allows someone to appoint an Agent to make decisions for them in the event they are unable to make those decisions because of incapacity. The documents specifies who the decision maker is, specifies that the powers are activated by the conclusion of a treating physician that the parent lacks the capacity to make his or her own decisions, and then may give some guidance as to how decisions are made. Basically, the Health Care Power of Attorney — the Agent — steps into the shoes of the person who appointed them and exercises that authority. Thus, an Agent has the authority to do things such as consent, refuse to consent, or withdraw consent to medical treatment on behalf of the person executing the document. Find out if your parent executed a North Carolina Health Care Power of Attorney. Check with your parent’s estate planning attorney, family physician, and local hospital if you are unsure.
When it comes to end-of-life decisions, such as the decision to withhold life prolonging medical treatment, this is best controlled in North Carolina by a Living Will, what is more formally known as an Advance Directive for a Natural Death. This is an instruction from the principal — in this case the parent — specifying that there are certain circumstances in which they want care withheld and to allow their process of dying to progress without efforts to prolong their life. This document takes the form of a legally enforceable instruction from the parent to his or her doctor. The North Carolina Living Will asks specifically whether the Agent under the Health Care Power of Attorney is bound to follow the Living Will or whether they have the authority to give the health care provider different instructions. In any event, the Agent under the Health Care Power of Attorney is the person with authority to make decision surrounding the implementation of the instructions in the Living Will, such as the identify of the physician, the location of treatment, and the timing of certain actions.
In the absence of conflict between children, most health care providers will implement end-of-life instructions appearing in a Living Will in consultation with all of the immediate family who have expressed an interest.
Options for Avoiding the Judicial System
If your parent did not execute a Health Care Power of Attorney, there are some options that may help if your siblings are willing to participate. You might try counseling with a therapist who specializes in elder issues. You might also all agree to hire a geriatric care manager. A geriatric care manager is often a social worker or nurse who specializes in assessing a senior’s needs and coordinating the care and resources necessary to help them.
Petitioning for Guardianship
If all else fails, you may need to consider becoming your parent’s legal guardian. If he or she is truly unable to make decisions, then someone else needs to have the legal authority to do so. Petitioning to become your parent’s legal guardian will give you that authority. Because guardianship is the most restrictive option, and because your siblings have the right to object to your appointment, you should consider guardianship an avenue of last resort. Guardianship can be a complicated legal process. As such, you should consult with an experienced elder law attorney if you believe guardianship is the best option, particularly if you expect opposition to your petition.
Contact Durham Estate Planning and Elder Law Attorneys
If you have additional questions or concerns regarding guardianship or other elder law issues, please contact the Raleigh, Durham, Chapel Hill estate planning and elder law attorneys at Clarity Legal Group by calling us at 919-484-0012 or contact us online.