Q: My father, age 84, has been living with my wife and I since my mother died in 2003. My wife has been a jewel about this, but it is beginning to stress our relationship, especially since Dad has begun to slip mentally and requires more care. Because we both work, we have had to bring in caregivers during the weekdays for some months. In order to conserve Dad’s resources, we have been providing his room and board, and he has been writing the checks for the caregivers because we can’t afford them. Lately, he argues that he is not a child and does not need anyone to look after him. He has become increasingly paranoid, thinking we are stealing his money. He tells my brother and sister these tales, and although they report these conversations, we get no help from them even though they live in the area. Anytime we suggest that he consider powers of attorney for health and finances before he is unable to make decisions for himself, he goes on a tirade. I would like to know how to get it through his head that we are not taking his money and are only looking out for his interests.

A: When it comes to discussing health care and financial issues, some folks have fears and concerns that: 1) their last years will be spent alone in an institution; 2) the wrong people will make medical and financial decisions for them; 3) by signing living wills and health care powers of attorney, they will be denied quality health care; and 4) they will lose control of their finances and their lives.

On the other hand, if a catastrophe strikes without appropriate documents in place, families often wind up in court and generate otherwise unnecessary financial and emotional burdens. For these reasons, your father should be made to understand that the written documents suggested will help save unnecessary expenses, assure his care and can be changed if he changes his mind – so long as he has the capacity to do so.

Now, as to how to approach this delicate subject with your father: In all probability, due to the paranoia that sometimes accompanies dementia, he will not want to be told what he should do by you or your siblings, but may well listen to an outsider whom he trusts. For example, because older Americans tend to look up to and trust their physicians – and because physicians and other health care providers also benefit if patients sign advance directives – your father’s doctor may help you bring dad to the realization that without making written statements of his wishes now, his desires for future medical treatment and financial management may not be carried out as he would like. Another potential source of influence in this area could be his minister or a geriatric care manager.

Through the efforts of people outside the family circle whom your father trusts, we believe he will come around, and we suggest that you engage an experienced attorney to prepare the documents and coordinate the entire process. One last tip: It may be a good idea to have the documents signed in the presence of dad’s physician or minister so your father will feel sufficiently comfortable.

Separate rights

Q: My husband of 45 years and I have signed a final separation agreement that has been approved by a judge, but the divorce will not take place for another nine months. I want everything I own to go to my two children, not him, so I went to my lawyer to get a new will. My lawyer told me that I did not need a new will because even if I died before the divorce is completed, my soon-to-be-ex-husband will get nothing from my estate. When I looked at our separation agreement, I found nothing that looks like it protects me. My lawyer says, “Don’t worry about it.” Should I?

A: Your husband’s right to participate in your estate depends on the law of your state of residence; however, estate rights, including the elective share, can be waived – either in whole or in part – either before or after marriage. Generally speaking, to waive these rights, there must be a written document signed by the person waiving the rights after he or she has been provided with a fair disclosure. Again generally, a waiver of all rights in a property settlement agreement signed in anticipation of separation or divorce constitutes a waiver of estate rights, including elective share. In fact, the law of most states says that if a husband and wife sign a final property agreement, each is barred from participating in the other’s estate. To be on the safe side, however, we believe that this very important waiver should be specifically stated in any separation agreement. If you don’t see it, ask your lawyer to show you the language. In any case, because divorce voids your will with respect to your spouse, we believe you should sign a new will in anticipation of divorce.

– Jan Warner is a member of the National Academy of Elder Law Attorneys and has been practicing law for more than 30 years. Jan Collins is editor of the Business and Economic Review published by the University of South Carolina and a special correspondent for The Economist.