As elder lawyers we sometimes think of our clients as belonging to an “intact” family or a “blended” family. Blended families result where one or both spouses had children from a previous relationship. So some of the adult children are step-children. Of course, family drama can occur in either type of family. However, there are special legal considerations when there are step-kids involved.
A blended family with aging parents calls for advance planning.
Your legal documents such as your will, your power of attorney, and your advance directives should be in place and should include back-up agents in case your spouse cannot function or is already deceased. A blended family might be a situation in need of a trust to govern control and descent of assets, depending on how the assets are held.
It is crucial that the legal documents be in place while both spouses have full legal capacity to understand and execute documents. Too often we find situations with one spouse taking care of a demented spouse and inadequate or non-existent legal documents.
Communication in a blended family is particularly important.
If you are a parent in a blended family, make your wishes known to both sets of children. I don’t mean to just give everyone copies of your documents…we do not advise sharing copies of your documents beyond the named agents. But frank and open discussions can help all parties understand why you named Johnny instead of Billy to act for you under your power of attorney. Also describing in depth what you would or wouldn’t want at your end of life can prevent battles among your children and step-children in a medical crisis. Sometimes your adult children will resist this type of conversation because it makes them feel uncomfortable. They may try to change the subject or say “Oh Dad you have a lot of time left!” Make them listen. If you want your spouse to be able to stop a feeding tube from being placed your children should understand that you have thought about it and made your decision. You can meet with the adult children separately if that seems wiser. Start by letting each child know that you love them and respect them as a member of the family. Then let them know that someone else was chosen as your agent under your legal documents. Reassure them that it does not mean that you respect them less.
What if one spouse in a blended family is already demented and no documents are in place?
And you have missed the chance to communicate due to the dementia limitations? You will be left with unattractive options if blended family members are advocating for different positions. Some families seek help resolving conflict by involving an attorney or family counselor. The goal would be to attempt to mediate a settlement that respects the differing points of view. Of course the success of this option depends on the good-faith effort put forward by all the parties.
If counseling/mediation does not work, you might be stuck seeking a guardianship. A guardianship is where a court appoints a caregiver (guardian) to manage the money or the person (or both) of someone deemed incapable of taking care of themselves. Guardianship is a last resort due to the expense and inconvenience involved. There will be court filing fees, attorney’s fees and costs for the examining committee. The court will be involved to monitor how the ward’s money is spent. Usually you will need court approval for any large purchases or sales. In addition the guardian will have to provide annual accountings to the court which retains jurisdiction over the case until the ward dies or has his or her rights restored.
Even with all the disadvantages, guardianship has one key advantage for hopelessly deadlocked blended families: clear decisions with authority to implement them.
If different kids are pulling different directions, whichever course of action gets court approval can then be implemented. This can be a great relief to move forward in a clear direction after the long game of tug-of-war resulted in inaction. The judge/magistrate overseeing the case can basically function as a referee to break stalemates and provide legal authority to the guardian to move forward.
If you are a parent in a blended family who still has capacity to make legal decisions, make your plan soon!
If the last year taught us anything it is that life is uncertain. Circumstances can and do change. Meet with an experienced elder law attorney to create your documents with your decisions clearly laid out. Then take the step to meet with the various adult children.