Fighting Over the Care of Aging Parents

More Siblings Clashing Over Money and Control

Deciding how to care for a parent who can no longer care for herself is among life’s most emotionally perilous experiences. In many families, that journey is made by adult children who together work out what is best for the parent and then lean on each other for solace and support.

But in growing numbers today, these decisions are moving out of private agreements arranged in living rooms and into public disagreements aired in courtrooms.

There, judges and lawyers wade into thickets of familial ill-will so dense that strangers must be appointed as guardians to determine where the parent should live, how her life savings should be spent and even, finally, how she should die.

No one knows for sure how often such cases end up in the nation’s probate courts. But judges, lawyers and advocates for the elderly say that sibling battles rooted in issues of inheritance,
control and care are becoming so common that some believe the field of elder
law will be as ubiquitous as real estate law in the next decade.

The questions are complex and growing increasingly urgent, involving not only the care of the parent, but . . . where does the money go and for what purpose? Do they live with us or do they belong in a nursing home? And if they live with us, which sibling do they live with?” says attorney Michael Minton, chairman of the American Trial Lawyers Association’s Family Law Section. “An unprecedented number of us face the issue of guardianship of our parents.”

`We are seeing more and more of these cases coming to our attention,” adds Judge R.R. Denny Clunk, president of the National College of Probate Judges, who hear most guardianship cases.

“They are generally over who’s going to take care of Mom’s money or who’s going to take care of Mom.”

Ten years ago in his courtroom in Canton, Ohio, Clunk heard about 150 cases a year in which an adult child would try to get guardianship of a parent — the legal authority to make decisions from
spending money to turning off life-support. About 10 of those cases wouldinvolve bitter fights between siblings over who should have that power.

Today, he hears about 250 of these cases a year. And of those, 20 involve the same bitter sibling fights. “Often the underlying problem is money,” Clunk says. “It may not be said, but that’s it. Everybody wants to protect Mom so there’s an inheritance for me, me, me.”

These fights also have become a regular staple for David Pollan, an elder-law attorney in Atlanta. Siblings, he says, often view the purpose of their parents’ money differently.

“Some children want the money to pay for the parent’s care and other children look at it as their inheritance,” Pollan says. “I get at least two calls a day on this. More often than not, they’re looking out for what’s in the best interest of the parent. But sometimes, the best
motives aren’t there.”

One recent case Pollan handled involved eight siblings who were divided over what to do about their father, who sufferedfrom dementia. It took several years of court fights to resolve which
sibling would get guardianship — a circumstance Pollan believes had little to do with the complexity of the issue.

“Basically, we were battling over what kind of care this man should receive. . . . It was as contentious as a divorce could be with children in a custody dispute,” Pollan says. “It wasn’t clear to me that they were putting aside their issues for their father.”

Huge Numbers, Huge Stakes

Behind the growing number of court fights are two converging national trends a rapidly aging population (the fastest-growing group of people in the country are those 80 years old and older) and the tremendous transfer of wealth expected from the hands of the World War II generation to their baby boom children.

Some estimates have put the amount of money at stake at $10 trillion, which would make it the largest transfer ever of inter-generational wealth. That figure is the subject of much debate, but
whatever the exact number, an enormous amount of money clearly is at
stake.

“Anyone who says finances don’t play a major role in these disputes is naive,” says Michael Gilfix, an elder-law attorney in Palo Alto, Calif. “I’ve had clients come right out and say it `I don’t
want to waste any of Mom’s money. I’m going to inherit it.’ ”

Don Crider, 61, a truck driver for a construction company in Lafayette, Ind., no longer has a relationship with his three siblings because of a huge fight over the family’s 109-acre farm.

In a suit in which Crider and his siblings battled over custody of their dying father, Crider was accused of tricking the elderly man into signing over the farm to him and swindling the rest of the family out of an inheritance.

“My own mother disowned me because of this,” Crider says. “My brother turned my mother against me. He’s ruined our family relationship completely.” In 1996, a judge ordered the
farm returned to Crider’s mother.

Although every case of sibling vs. sibling involves distinct family matters, the underlying issues often are more alike than different, experts say. The more money involved, for example, the bigger and more frequent the fights.

“An Arizona psychiatrist I interviewed told me that for every $100,000 in a given estate, a lawyer shows up; for every $25,000, a family member shows up; and if there isn’t any money, then nobody shows up,” says Winsor Schmidt, a professor at the University of Memphis who has studied guardianship in a half-dozen states.

Too often, Schmidt believes, adult children are more worried about who gets guardianship of the purse strings than about the health of a frail and failing parent.

“It may not be the case all the time,” he says, “but it’s a fair characterization if nobody shows up when there is no money in the estate, and relatives and lawyers start showing up when there is money in the estate.”

None of that would surprise Ted Beasley, chairman of the Elder Law Committee of the American Bar Association and a lawyer in Concord, N.H. He gets involved at least monthly in a fight between siblings over an aging parent. Often, a financial entanglement is behind the battle.

“Talk to me five years ago, I would have one incident like this,” Beasley says. “Now, it’s every two weeks we are called in on a messy situation where the parent’s money is invested in one of the kids’ property.”

Sometimes, the cases become criminal fraud. The National Center on Elder Abuse keeps track, through state records, of the number of elderly people who every year are abused financially by relatives and friends. Nationwide, reports of these incidents have risen from 117,000 in 1986 to 293,000 in 1996.

“A lot of these cases are siblings reporting another sibling for something that’s gone wrong,” says attorney Paul Hodge, chairman of the National Healthcare Law Enforcement Alliance in Providence, R.I.

Whether criminal or civil, there are more lawyers involved than ever. In the last five years, membership in the Academy of Elder Law Attorneys has nearly doubled.

“We already see more and more attorneys going into the area,” says N.E.H. Hull, a Rutgers University law professor who studied the issue for the American Bar Association. “I can see elder law challenging real estate law as a huge field in the next decade.”

Control Often the Issue

Of course, not every sibling showdown revolves around a parent’s money. Control can be just as big an issue control of where the parents live and control of their care. The underlying issues of these sibling fights can date back decades, simmering with a lifetime’s resentment.

“You sit up on the bench, listen and just shake your head at what goes on,” says Chief Judge Milton Mack, of the Wayne County Probate Court in Detroit. “You are dealing with people who are educated and professional with good jobs but can’t keep their eyes on what’s important.”

Mack, who hears about 400 guardianship cases a year, says most are trouble-free. But about 10% of the cases become sibling power struggles played out before a judge, he says, “ranging from not agreeing with one another on what’s best for the parent to one sibling assaulting or threatening another.”

“These are unfinished-business issues from their youth that come to the surface when parents are frail,” says Nancy Kriseman, an Atlanta clinical social worker who counsels 15 to 20 families a week on caring for aging parents. “It could be because they are feeling guilty for neglecting the parent most of their life . . . or it could be because they are looking at the parents estate and saying `Gee, this could be really helpful to me.’ ”

Deborah Primock, head of the guardianship program of the Maricopa County probate Court in Phoenix, also sees behind most disputes. “They are sometimes over something as simple as who’s going to have mom’s house,” she says. “A lot of children feel that what their parents have is theirs. Or, `I’ve taken care of Mom longer so I should get more.’ But clearly the real issue is who’s going to be
the one who ends up in control.”

No matter what their root cause, these fights quickly can reach family-wrecking, gut-wrenching levels.

Take the case of Janet Johnson, 35, co-owner of small computer business in Charlotte, N.C. She and her two brothers are barely on speaking terms after an argument over caring for their elderly parents turned into a year-long court fight.

Johnson had been named by her parents as guardian of a large family trust fund. After her brothers learned of that, she says, the disagreements began.

The relationship became even more strained after both parents, who are in their 80s, developed Alzheimer’s disease. Two years ago, Johnson sought guardianship of her parents so she could run their affairs and put them in a nursing home.

“It was the worst thing I had to do in my life,” she says. “But I was forced to do it to protect them. I would have been worn out trying to take care of both of them.”

Johnson’s brothers didn’t see it that way and challenged her in court. “My sister wanted them to go (into a nursing home). When they didn’t, she went the route of the court system to put them there,” says Johnson’s brother, Phil Berkeley, of Bufford, S.C. “That’s where we all bumped heads. . . . The family is now completely split, and probably will always be.”

In the end, the court, unable to sort out who was right, appointed a lawyer the parents had never met to be their guardian. Now, a stranger will decide where they will live, how their money will be spent and what medical treatment they will have.

“It really tore the parents apart,” says Jean Galloway Ball, an elder-law attorney from Fairfax, Va., who represented the parents in the guardianship case. “They did everything they were supposed to do to avoid their children fighting over them. They had a power of attorney and a family trust in place. But the case turned into a power struggle over the parents because their children couldn’t get along.”

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