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Question:

My mother-in-law is widowed. She is 80, lives alone, and has been deteriorating (poor hygiene, nutrition, etc.) She has many health problems (currently hospitalized) and appears unable to properly care for herself. We suspect she has done no estate planning but we are not sure about that. Her sons would like to find out the details of her financial and estate planning situation. She is, however, refusing to share any of this information with them. I do not know if she would be considered legally incompetent. Is there anything her sons can do to gain access to the information they seek about her financial and estate planning situation without her express consent?

Response:

No. The American legal systems places a high value on individual autonomy. As long as an individual has capacity, they have full self-determination with regard to their legal and financial affairs. Only when they no longer have such capacity, can a court order the appointment of a conservator or guardian to take over.

There are a number of problems with this system. First, while the legal determination by a judge is black and white — you either do or do not have legal capacity — actual cognition is anything by black and white. Many seniors begin to lose some of their earlier capacity and begin to make errors or bad judgments, or become victims of scams, that would not have occurred when they were younger but can still by and large manage their affairs. Others go in and out of capacity, perhaps performing at a higher level in the morning than in the evening. Yet, while the law often provides lip service to the idea of guardian or conservator appointments that are limited and tailored to the needs of the individual, this rarely happens. The legal system is too overburdened and the process too time-consuming and expensive for anyone to take the time to create a limited appointment and then go back to revise it as necessary. So guardianships and conservatorships typically take away all the legal rights of the individuals under protection.

Further, once a guardian or conservator has been appointed, it can become difficult to get them removed or to limit their power. Witness Brittany Spears.

In addition, where one party objects to the appointment of a guardian or conservator or to the choice of the individual for this role, the proceeding can become contentious and expensive.

To avoid all the above, I would suggest that your husband and his brothers urge their mother to meet with an elder law or estate planning attorney. They can offer to pay the bill and to provide transportation, but not to participate in the meeting, if that would make their mother more comfortable. It’s more important that their mother have a plan in place now while she can sign documents than that they actually know what’s going on. If your mother-in-law can sign a durable power of attorney now, than one or more of her sons will be able to step in when needed without having to go through the court procedure described above.

Unfortunately, if your mother-in-law refuses to cooperate, her sons may have to seek guardianship or conservatorship if her situation deteriorates in the future.

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