Cautionary Tales - They're Not Doing Well. Now What? - Episode 229

Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle! Today’s episode of Legal Tea is the “cautionary tales” topic. And on these “cautionary tales” episodes of Legal Tea, we normally talk about real-life cases with real-life clients that are things me or my office have worked on -or they are things that I think are generally good things to be aware of, that way you don’t turn into a cautionary tale on my Legal Tea podcast one day! So… today’s episode, today’s topic hits close to home for many of you because we're now on the other side of the holidays. You may have traveled, gathered with family and loved ones, shared meals and memories – and for some of you, you may have left those gatherings with a knot in your stomach because you noticed something. Mom wasn't quite herself. Dad seemed confused about things he used to handle easily. Grandma repeated the same story three times in an hour. Or maybe it wasn't memory at all – maybe it was physical decline, mobility issues, or signs that living independently is becoming unsafe.

So now what? You're back home, maybe in another state, and you're lying awake at night worried. You're replaying conversations in your head. You're wondering if your siblings noticed the same things. You're asking yourself if you're overreacting or if this is as serious as it feels. That's exactly what we're going to tackle today – the post-holiday action plan for when you've noticed your loved one is declining. Because if you don’t do something about it … well, that’s why I’m putting this under the “cautionary tales” type of episode. There could be consequences to burying your head in the sand. Let’s dive in…

First things first – trust your gut. If something felt off during your visit, it probably was. We see our parents, grandparents, and loved ones through such a specific lens, right? We remember them as they have always been – strong, capable, sharp as a tack. So when we notice changes, especially significant ones, it is easy to minimize them. "Oh, they're just tired." "The holidays are exhausting for everyone." "I'm probably reading too much into it." But here's the thing – you know this person. You know their baseline. And if your instinct is telling you something has changed, listen to that. I've had countless clients tell me they wish they had acted sooner, but almost nobody tells me they wish they'd waited longer.

Interestingly, I have found that distance can actually give you clearer eyes than the people who see your loved one every day, because decline can be gradual and easy to normalize when you're in it daily. Now, I'm not saying you should panic. What I am saying is do not dismiss your observations. Consider writing them down, actually, even on a note sheet on your phoe. While the visit is still fresh in your mind, make notes about what specifically concerned you. Was it memory issues? Confusion? Problems with mobility or self-care? Bruises that suggested falls? An empty fridge? Unopened mail piling up? These specific observations are going to be important as you move forward.

Next up is … consider having the family conversation.

Okay, let’s say you noticed decline. Step one is getting on the same page with other family members. And I mean NOW – not six months from now when things have gotten worse. If you have siblings, call them. If there are other close family members involved, loop them in. This conversation should typically happen quickly for a few reasons. First, you want to compare notes. Did everyone notice the same things? Maybe your brother saw things you did not, or vice versa. Getting a complete picture is important. Second, this is about creating a unified approach. Nothing derails helping a declining parent faster than siblings who are not communicating or who are working at cross purposes.

At this point, you also need to decide who is going to take the lead on next steps. In my experience, this is often the child who lives closest geographically, but not always. Sometimes it is whoever has the most flexible schedule, or whoever has the best relationship with the parent, or frankly, whoever is willing to step up. Just make sure someone is designated as point person, because otherwise things may fall through the cracks.

If you have determined that it is time for a hard conversation with your family member or loved one, you are not in panic mode, but you should think of it as a "we have a situation" mode. This conversation is going to be uncomfortable. There's no way around that. You are essentially telling someone you love that you do not think they are doing as well or managing as well as they think they are. That's a blow to anyone's pride and independence. So approach it with compassion, but also with conviction.

Some people find it helpful to frame this as coming from a place of love and wanting to help them stay independent as long as possible. Because that's the truth, right? You're not trying to swoop in and take over their life – you're trying to put supports in place so they CAN maintain their independence and safety. You might say something like, "Dad, I love you, and I want you to be able to stay in your home and keep living your life the way you want to. But I noticed some things over the holidays that worried me, and I think we need to make sure you have the right support and protections in place."

And be very specific about what you noticed, but absolutely do not be accusatory or condescending. Instead of "You can't remember anything anymore," try "I noticed you seemed confused about some things, and I'm worried about your memory." Instead of "This place is a disaster," try "I noticed the house isn't as tidy as you usually keep it, and I'm wondering if some tasks are getting harder to manage." Now, let's be real – they very well may get defensive. They might deny there is a problem. They even might get angry with you. That's a normal response to feeling like their autonomy is being threatened. Do not take it personally, and do not get into an argument. You should look at it like planting a seed here. Sometimes that seed takes time to germinate. But you have started the conversation, and that is what matters.

Since I am an estate and elder law attorney, let’s talk a bit about the legal stuff. Once you have had the initial conversation with your loved one, you may want to figure out what legal documents exist, where they are, and whether they're adequate for the current situation. A few things you may want to look for are: First, Power of Attorney (Financial) – This is the document that allows someone to make financial decisions if your loved one becomes incapacitated. Who is named as the agent? Is there a backup? Where is the original document? Is it recent enough that banks and financial institutions will accept it? Some POAs have old language that doesn't hold up well anymore. Second, Healthcare Power of Attorney or Health Care Representative – This allows someone to make medical decisions. Again, who's named? Is it the right person for the current situation? Third, Living Will and/or Advance Directives – This outlines wishes for end-of-life care. Do these documents exist? And finally, a Will and/or Trust – How are assets going to be distributed after death? Is the plan still appropriate? If there's a trust, is it funded? I cannot tell you how many times I see a beautifully drafted trust that's completely useless because nothing was actually transferred into it.

And here is a hard truth – if your loved one is already showing significant cognitive decline and these documents do not exist or are not adequate, you may be in a tough spot. There is a legal standard called "capacity" – meaning the person has to understand what they're signing and the implications of it. If someone is too far gone with dementia or cognitive impairment, they may no longer have capacity to sign these documents. And that's when things could get expensive and complicated. So if your loved one still has capacity – even if it is diminished – now is the time to act. Get them to an estate and elder law attorney as soon as possible. If they're willing to go at all, make the appointment.

Away from the legal stuff – and now to more medical/healthcare things … If you're concerned about your loved one's health or cognitive decline, you need to get involved in their medical care. That means: (1) Finding out who their doctors are; (2) considering attending an appointment or two; (3) Consider being added on their HIPAA authorization so doctors can talk to you (if needed); and (4) Getting a full medication list and making sure there's a system for taking meds correctly. Sometimes families are shocked to learn their parent has not been totally honest with their doctors or has not even been going to appointments. So, do not assume the doctor knows what is really going on. Patients often put on a good show during a brief appointment.

As we start to wrap this episode up, here's something I want you to know – you are not alone in this, and you do not have to figure it all out by yourself. I once heard someone say that elder law attorneys are often called "social workers with a law degree" because we have bleeding hearts and a ton of resources. For example, if families come to my office in crisis after the holidays, we do not just do the legal stuff. We can connect them with: home health care agencies, geriatric care managers who can do assessments and coordinate care, Medicare advisors (for Medicare questions – we do Medicaid planning, but Medicare is different), Social Security resources, support groups for caregivers, long-term care facilities, financial and tax professionals, and so much more. So even if you are listening to this podcast from across the country from me, find an elder law attorney in your loved one's area. We are a connected community, and we usually have these resources at the ready.

Also, take care of yourself through this process. Caregiver burnout is real, and adult children trying to manage aging parents' care while juggling their own lives, careers, and families get overwhelmed fast. So, it is okay to ask for help. It is okay to hire help. It is okay to make decisions that prioritize everyone's wellbeing, including your own. I also know this episode might have been hard for some to listen to. These are difficult, emotional topics. But here's what I want you to take away – if you noticed decline in your loved one over the holidays, you're now in a position to help them before things get worse. That's a gift. Yes, it's going to require some hard conversations and some difficult decisions. But acting now, while there are still options on the table, is the most loving thing you can do. Life is short. Our aging family and loved one will not be with us forever. But the time we have left with them can be safer, more secure, and less chaotic if we're willing to have these tough conversations and put the right supports in place.

Alrighty, let’s shift to a sneak peak of next week, which we’re circling back to the “current trends” topic where we talk about things that are going on currently that impact my estate and elder law world – or maybe, things that I have stumbled upon on the news or social media that is relevant to this podcast. Transparently, I just had surgery (I’m okay! Just an elective surgery, but it did knock me off my feet a bit!) – so I am just kind of getting back into the swing of things, sooo I’m not sure what next week will be on yet. You will just have to tune in and find out, I guess.  Until then, Legal Tea Listeners, be well and talk soon!

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